For the last couple of a day’s there’s been a lot of air blown about because Justice Ginsberg, who’s 81, fell asleep during President Obama’s State of the Union blather. Well, who can blame her? I can’t listen to him speak at all without my skin crawling. He has nothing to say that’s worth listening to unless you live in the same state of hallucination as he! But for normal sane people – it’s painful listening to his blather and lies.
Well, as it turns out she was a bit tipsy because she had some wine at dinner. Maybe we shouldn’t criticize her for that because alcohol is well known analgesic, and perhaps it was her way of overcoming the pain of listening to him. Nah….she was just tipsy. She admits it saying:
“The audience for the most part is awake because they are bobbing up and down and we sit there, stone-faced, sober judges,” she told those gathered for the event, which included Justice Antonin Scalia. “But we’re not—at least I was not—100 percent sober,”
Well, let’s be honest – the Constitution has never been as safe as when Ginsberg was fast asleep on the bench, which has not been entirely uncommon. But I find it interesting she acknowledges not anyone is entirely awake or sober. I have to admit, I’ve now come to develop a new respect the Congress’ tolerance for pain.
Michael Ware posted an article entitled, Confession Point to a Need to Remove Judges after Certain Age on February 14, 2015 saying:
“ it might be that Justice Kennedy has the habit of bring wine to every State of the Union night dinner. He might get the Justices sloshed every time the President is about to speak. It might be his way of suppressing the laughter; I don’t know. But it seems as if this is a little too close a tale to be different times. At 81 who can blame her for getting confused?”
He goes on to say “we need to think through this system of ours”, starting with competency tests for aging judges and age limits for continued service. He asks – “what if she gets confused deciding a case before the Supreme Court?” Confused? Really?
Here's a woman who in 2005 believed the next appointment to the court should be a woman - but not just any woman - this former ACLU attorney wants "only" a woman that would “advance human rights or women’s right”, which of course means whatever she wants it to mean. So I ask – when has she ever not been confused?
He further states that:
"As important as a role these Justices play in our legal system, would we not benefit in making sure that their minds are up to the rigors of the job? "
Although correct, he, like virtually everyone else who writes about this issue, are unfortunately missing the point. There’s nothing in the Constitution that requires them to be competent, sober - or for that matter – there isn't anything in the Constitution that even requires them to be lawyers. Although they all have been lawyers, including James Byrnes who served on the court from 1941 to 1942 but never attended law school, and never even graduated from high school. He leaned law by working as a law clerk and then took the bar exam, wherein he passed and became an attorney.
In point of fact, there are no official qualifications outlined in the Constitution that bars anyone from becoming a Justice of the Supreme Court, including citizenship, and according to Hamilton in Federalist No. 81, "[There is not a syllable in the [Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution...."
In Federalist No. 78 Hamilton noted that "the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them." Just how wrong could anyone be?
Robert Yates, also a member of the Constitutional Convention saw the creation of an "unaccountable judiciary", arguing in Anti-Federalist paper No. 15 that: (Editor's note: I'll bet you didn't know there were Anti-Federalist papers did you?)
“There is no power above them, to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.” (Editor's note: Impeachment is the only remedy otherwise they can't be removed.)
Yet isn’t this what the founding Fathers wanted to avoid - imperial judges imposing their personal views based on “the needs of the time”?Or worse yet, back door understandings with out-of-control and unaccountable government bureaucracies, a government of men and not a government of laws.
Judges like Ginsburg have consistently done end runs around the clear and understandable word of the Constitution to promote the “public good”. That’s not her job! It’s the job of the elected by way of the electorate! The Constitution, as written, can’t be protected from the judiciary if society won’t recognize the Constitution is in need of protection from them.
Court jesters like Ginsburg, Breyer, Kennedy, Steven, Souter (and I would assume Sotomayor and Kagan agree) all cite “National Consensus” as an important factor in their decision making. National Consensus isn’t for them to determine, nor is it how they should be deciding cases. And just how is it they determine this so-called National Consensus? If something really is a “National Consensus”then the electorate will determine that by choosing those they elect who agree with them! Otherwise it’s merely the opinion of some jurist or group of jurists as to how the world should function.
However, we have yet to properly define the problem. With definition comes clarity. The real question before us is this- why are these federal judgeships lifetime positions? The answer is of course the Founding Fathers wanted to make sure decisions by the federal judiciary wouldn’t be based on keeping their jobs. The Founding Fathers believed this would help insure the integrity of the federal court system. That has proven to be a failed philosophy!
For elected officials the Constitution is enshrined with a principle known as the Lex Villia Annalis, which was right out of ancient Roman law setting minimum ages to serve as senatorial magistrates. To be President of the United States the candidate must be 35 years old, and may only serve two four year terms. To be elected to the House of Representatives a candidate must be 25 years old and may serve as many times to which they are elected in two year terms, and 30 years old to be elected to the Senate in six year terms. It has become clear the Constitution needs changed to have a minimum age requirement and term limits for the federal judiciary.
There are three levels of the federal judicial system. The District Courts, the Circuit Courts of Appeal and the Supreme Court. It’s my belief that no one should be selected to the federal judiciary until the age of 40, and may only serve two five year terms at each level. Having served one or both terms in the lower courts they may not be restricted to serving terms in the higher courts, but may not be allowed to return to the lower courts after they have completed their terms of office in the higher courts. At the end of the first five year term, at each level, they’re records should be reviewed and either confirmed or denied a second term for their office by the Senate. That determination shall be final for any future appointments to the federal judiciary.
Some may view that last part as unfair because in a Congress filled with leftist ideologues perfectly good jurists aside forever, and that's true! But it's also true it would place some much needed controls over the federal judiciary, which has gone astray from the Founding Fathers vision of a nation governed by laws and not men.
See! Problem solved! Anyone for a 28th Amendment?