By Edwin Cooney
As difficult as it may be to imagine, on Monday, September 17th, 1787, the day the Constitution was adopted for presentation to the thirteen states, there was no “liberalism” or “conservatism” in our body politic. Hence, neither Liberals, Conservatives, Democrats, nor Republicans can legitimately deny their guilt in the historical observation that when it comes to the American judiciary and the application of constitutional law, political practicality has historically prevailed over either patriotism or objectivity.
First, the Federalist System consisting of the Legislative, Executive and Judiciary branches was created before the thirteen colonies ratified the Constitution. There were no political parties in existence to apply their principles. Thus, you have the ideal of nonpartisans serving on all courts. This reality enables every Conservative's concept of "original intent” even as the new document described that judges would be appointed for a lifetime so that they might avoid outside pressures when it came to making judgments.
Within the next decade, however, Federalists led by Alexander Hamilton and Democratic Republicans led by Thomas Jefferson and James Madison were openly competing with their political opponents to influence decisions made by the United States Supreme Court and other courts both state and federal.
Additionally, millions of Americans believe that the Constitution specifies the number of judges on the Supreme Court when in fact it makes no such provision. This assumption enables too many people to believe that Roosevelt was violating the Constitution by adding judges to the court. By not even consulting his vice president, the cabinet or the congressional leadership before announcing his proposed judicial reform in 1937, FDR appeared devious and thus seemed guilty of "packing" the Supreme Court. Actually, he was very, very far from being the first president to do so.
When John Adams left office in 1801, he deliberately asked his outgoing Secretary of State John Marshall to accept appointment as a Federalist to the Supreme Court. Marshall, who often quarreled with his cousin, incoming president Thomas Jefferson, accepted the appointment and, since there was no way except through impeachment that Marshall could be removed by Jefferson's Democratic Republicans, he was able to serve for 34 years and establish the doctrine of Judicial Review thus empowering the Supreme Court to judge the legitimacy of law under the Constitution. Every fifth or sixth grade American history book referred to this act by John Adams, a Founding Father, as Adams' “Midnight Appointments.”
(Note: There’s an irony to the story that FDR sought to pack the Supreme Court since he is the only president to have appointed a justice who was not of his party to head the Supreme Court. In June of 1941 when Chief Justice Charles Evans Hughes retired, President Roosevelt appointed Harlan Fisk Stone as Chief Justice of the United States. Calvin Coolidge originally nominated Stone as an Associate Justice in January 1925.)
The heart of the modern day quarrel between Conservatives and Liberals is whether the court ought to interpret laws as written by the Founders or whether the justices ought to interpret laws according to additional amendments existing in compliance with conditions since the Civil War. Liberals generally insist that the Constitution as a living document should reflect modern conditions and sensitivities. Conservatives insist that, in contrast to its original purpose, the Supreme Court has become a legislative body which creates rather than properly interprets laws.
Since our political leadership has never sought a way of getting around this conflict, everyone, from president to voter, is to a considerable extent a victim of legal and cultural gridlock.
Republicans and Conservatives, who since FDR's day have been so self-righteous about “court packing," have indulged in that very practice twice now in the last four years because they've possessed the political and circumstantial advantage to do so. Not until Barack Obama did the Congress deny a sitting president the right to have a nominee to the Supreme Court's career and credentials considered by the United States Senate under the constitution's advise and consent provision. This political season, because they possess the situational and political advantage, they have decided to forego the right of the people to influence the nomination of a new justice through a possible newly elected president. Thus, so much for the right of the people!
So, what must we do to untie this historical ideological and political knot?
First, we must recognize that neither Republicans, Conservatives, Democrats, nor Liberals, or even the purely spiritual among us, are above politics.
Second, this being the case, we are in a transitional period between recognition of our dilemma and its legitimate alteration or correction.
Third, in the meantime, we must agree on the principles and conditions behind whatever constitutional amendment we invite the states to ratify. Among these should be the end of lifetime appointments to the entire judiciary. Also, the terms of justices should be set at nine years. That could conceivably allow every sitting president to nominate a judge to the Supreme Court during the first and third years of his or her presidential term.
Another provision should probably assert the number of justices to serve at any time on the court.
Finally, since the only legitimate way of managing the court is the present system, we have no other alternative than to openly pack and expand the Supreme Court. Keep in mind that, under prevailing circumstances, packing the Supreme Court is perfectly lawful, practical, and necessary.
I'm convinced that we do the greatest damage to ourselves when we're in denial of what's real!
In the wake of recent GOP attitudes and actions, if I were Joe Biden, I would pack the court as full of Liberals as I possibly could!
So, go to it, Joe!
RESPECTFULLY SUBMITTED,
EDWIN COONEY
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