Don’t Forget the Third Branch


Bill Yeomans

The incoming House Judiciary Committee majority will have to sort its way through a crushing load of weighty issues that were neglected by the outgoing majority.  The docket will be filled by oversight of the Trump administration, including – for starters — investigation of its blatant violations of the Emoluments Clause; its multiple assaults on the Department of Justice and the rule of law, including the appointment of an unqualified acting Attorney General; and its efforts to obstruct FBI investigations.  At some point, perhaps even before the next large Mueller shoe drops, it will begin the constitutionally necessary and nearly all-consuming march toward impeachment.  But, its focus on the executive branch should not drown out equally crucial efforts to rescue the Supreme Court from partisan corruption.

The Kavanaugh confirmation was the capstone in the Republican party’s 50-year effort to convert the Supreme Court into a tool to implement the Republican political agenda.  Republican presidents from Nixon through Trump have campaigned on their intentions to appoint ideological conservatives to the judiciary.  They have turned this promise into a central building block of electoral success.  They have now succeeded beyond even the wildest dreams of soon-to-be-Justice Lewis Powell, who urged the U.S. Chamber of Commerce to weaponize the courts in the service of business interests.  They have fulfilled the fantasies of angry conservatives intent on undermining rulings in favor of civil rights and women’s choice.  They have enshrined the Federalist Society as the party’s judge and justice picker.  A complicit Senate has confirmed a steady stream of judges and justices who support the Republican political agenda of restricted government regarding protection of the environment, consumers, labor, healthcare, voting rights, civil liberties and civil rights, but big government when it comes to promoting religion.  Because Mitch McConnell shamelessly ignored Merrick Garland to save a seat for Neil Gorsuch and Republicans rallied behind the convincingly accused, dissembling, partisan Kavanaugh, the Supreme Court is now controlled by a five-member Republican-appointed far-right majority.

That may appeal to Republicans in the near term, but it is a disaster for the Court, whose legitimacy depends on maintaining the appearance that it is applying law, rather than serving a partisan agenda.  It is time for a serious national discussion about how to pull the court back from the partisan brink.

The House Judiciary Committee should start with investigation of the many unresolved issues left by the Kavanaugh confirmation.  It needs to learn the details behind the truncating of the FBI investigation into Dr. Blasey Ford’s sexual assault allegation and it needs to finish the investigation.  The Committee also should complete other unfinished inquiries, such as how Kavanaugh was selected, who paid his six-figure debt shortly before his nomination, whether he was lending money for baseball tickets to attorneys who might appear before his court, and whether he lied to the Senate Judiciary Committee on matters ranging from the theft of Democratic Judiciary Committee memos to the meaning of entries in his high school yearbook to his conduct with Dr. Blasey Ford.

The Committee also should examine the eighty-three judicial complaints that were filed with the D.C. Circuit against Kavanaugh, referred to Chief Justice Roberts, passed along to the Tenth Circuit, and dismissed because the code of judicial conduct does not apply to Supreme Court justices.  Was dismissal appropriate?  Would Kavanaugh have been subject to discipline if he had not been given de facto immunity through confirmation to the Supreme Court?

Examination of this issue leads directly to the Committee’s obligation to take up legislation to extend the rules of conduct that govern all other federal judges to cover Supreme Court Justices.  Doing so raises challenging, but not insurmountable, questions regarding how to structure enforcement of such a code to ensure proper respect for separation of powers.  The Committee will need to hold serious hearings on these issues.

Kavanaugh’s confirmation also highlights the inadequacy of the Supreme Court’s recusal practices.  His stunning testimony revealed an angry man who harbored deep hostility toward Democrats and embraced conspiracy theories involving the Clintons and their supporters.  Although the Chief Justice has questioned the authority of Congress to impose recusal standards on justices, the Committee should consider legislation to clarify that existing law applies to justices and should examine whether Kavanaugh’s intemperance requires revisiting existing standards.  Because justices are not required to explain their decisions whether or not to recuse, the law of recusal by justices is underdeveloped.  That should change and, since the Court won’t, the Committee needs to lead the way.

The Committee also should convene broader hearings on ideas to rebuild the damaged Court.  Many of us have long supported an end to life tenure in favor of eighteen-year terms, which should not only lighten the dead hand of long-gone presidents, but also temper partisan fervor surrounding appointments. Appointments every two years should ensure that each president would appoint at least two justices.  The system would have to account for the norm busting of extreme partisans such as Mitch McConnell, who might decide not to allow a vote on a nominee to save the seat for the next president.  In any event, abolishing life tenure most likely would require a constitutional amendment.

The Committee should also consider proposals to increase the number of justices.  While there is justice in calling for an increase to account for the seat stolen from Obama, there are also strong arguments that the number of justices, which fluctuated initially, has been locked in place for a century and a half while the judiciary and the needs of the country have grown exponentially.  The Committee should also hear more far-reaching suggestions, such as that of Garrett Epps and Ganesh Sitaraman to make all federal judges Supreme Court justices and randomly pick panels of nine to sit for two weeks at a time.

The Judiciary Committee must not allow the gargantuan task of checking this executive to prevent it from also attending to the health of the third branch.  The past two years have demonstrated with chilling clarity that the rule of law and our democracy will not survive without a strong and independent judiciary.

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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.