Balance of Powers

John Nichols of The Nation writes about checks and balances between executive and legislative power, particularly regarding the President’s ability to make war. Nichols’ argument is that it was, Constitutionally speaking, the responsibility of Congress to put the brakes to Bush’s drive for war, a responsibility they shirked with their vague “Resolution Authorizing the Use of Force Against Iraq”–even as they refused to declare war! When Sen. Ron Paul reminded Congress that it was their responsibility, not the President’s, to declare war, and made a motion to add a bona-fide declaration to the Authorization of Force, his motion was flatly denied.

Essentially, by refusing to declare war, Congress refused to take responsibility for Bush’s actions in Iraq–and thus made it easy to be seen supporting a popular President without taking any risks themselves. Now that it is becoming crystal clear that Congress and the American people were misled by Bush and Co. (although it was pretty clear to a lot of us months ago, even last year), Nichols calls on Congress to redeem their lapse of duty by taking the lead in investigating, thoroughly and openly, the not-so-creative manipulation of fact and power behind the war in Iraq.

What Nichols’ post highlights is the incredibly expanded role, in increased power, of the President in modern times. One of the risks of openly asking Congress for a declaration of war is that it would not pass–after all, we haven’t declared war since WWII–and that Bush would go to war in Iraq anyway. Bush I did it in 1990, and Clinton did it in 1999, both times forcing Congress to go to the Supreme Court in an attempt to force the President to comply with the Constitution–and both times failing to win the support of the Supreme Court. Congress is partly to blame, having greatly expanded the role of the administrative branch with the PATRIOT Act and having failed, again and again, to put Bush to the test. 127 out of 127 judicial nominees? Approved. Massive detention of foreign nationals without due process? Approved. War in Afghanistan, violation of the Geneva Convention, massive tax and non-military budget cuts, federally-funded faith-based programs, anti-regulation activists appointed to regulatory agents? Approved, approved, approved, approved, approved.

While Congress contemplates its own too-much-protested irrelevance, I’ve been thinking about the judiciary. In a nutshell, I believe that, given the greatly expanded power of the administrative branch, it is no longer tenable to allow the President to appoint the courts that are intended as a check on executive power. No Founder could have imagined the massive administrative apparatus we would accumulate over the 20th century, especially the FBI and CIA, and more especially their expanded powers under the USA PATRIOT Act. Neither could they have foreseen the aforementiond abdication by Congress of the right to declare war, and the much greater power accorded the administration under the War Powers Act. What it boils down to is a President with the power to arrest alleged criminals and try them under judges he himself appointed.

In order to preserve the checks and balances that were meant to underpin the running of our government, then, it seems to me that the judiciary has to be made fully independent of the administrative branch (or at the very least, moreso). This means, first and foremost, taking away the President’s ability to appoint federal and Supreme Court judiciaries. I’ve thought pretty hard about what could replace Presidential appointment, and I’ve come up with a few ideas. The first, and my favorite, is to have the federal judiciary nominate new federal judges and Supreme Court justices, perhaps with guidelines restricting nominees to those with a certain degree of seniority in their respective lower courts. Thus, when a Supreme Court seat is vacated, the federal judges would nominate one of their own, perhaps limiting consideration to those with at least 10 years (or some other reasonable figure) as a federal judge. This nomination could, in the case of the Supreme Court, be subject to Congressional approval, perhaps a Presidential veto; federal judgeships could be selected by a vote of all the federal judges, or perhaps confirmed by the Supreme Court. Another idea is to elect currently appointed judges the same way lower court officials are elected in some places–an idea I like much less as likely to turn judges into politicians, but which apparently works well enough where it’s practiced. Or judges could be nominated by their prospective peers (the Supreme Court nominating members to fill its vacancies, the federal courts nominating members to fill theirs) and voted on by Congress. All these ideas would entail certain practical difficultes, but then so does the current system. The advantage would be in removing much of the politicization of judicial appointments–and perhaps, in the process, making it less likely for the Supreme Court to support Presidential candidates favorable to their own political ideologies.

I’m also thinking that Supreme Court justices should have a limited term. I understand that their life sentences terms are meant to make them less subject to the ebb and flow of political ideologies, but I don’t think that’s worked out very well so far. Even if Presidential appointment remains the rule, justices should be limited to a reasonable period spent on the bench–perhaps 10 years (with one rotating out every year, or something). This would make it far more difficult, however justices are appointed, to consolidate a block of justices committed to a particular ideological viewpoint, as well as limit any long-term damage a dodgy Court, if installed by some conspiracy of events, could inflict. Ex-justices could be retired back into the federal judiciary, or perhaps a new position could be invented to take advantage of their admittedly vast experience of Constitutional interpretation and application–perhaps as adjuncts to Congress?

I realize that this is a tall order, requiring a Constitutional Amendment at the very least–but we’ve addressed issues like this before, in the case of Presidential term limits for instance, suggesting that it’s not entirely beyond the pale of possible actions. Mostly, I just want to float the idea–maybe I’m overlooking some incredibly important fact about the status quo. But I’m pretty sure at least that something has to be done to balance the administrative branch’s much-expanded powers, or rather than merely changing the Constitution, we might as well scrap it.

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