January 22 is the anniversary of the United States Supreme Court’s decision in Roe v. Wade, 410 U.S. 113 (1973).
“They should take politics out of selection of judges,” a fellow seated to my right commented a couple of days ago.
We should be clear about one matter: judges, as part of our political system, are selected by various processes—Federal appointment for life after nomination by the President and confirmation by the Senate; various hybrids, at the State level, of appointment and election—that inherently are “political.”
“Politics” is defined: “1. The science or art of political government. 2. the practice or profession of conducting political affairs. 3. political affairs. 4. political methods or maneuvers. 5. political principles or opinions.” The American College Dictionary, 1962 ed., p. 938. The word has its roots—and, as the character of Gus in “My Big, Fat Greek Wedding” already would have pointed out—in the Greek word “politikos,” and that means “pertaining to citizens or to the state.”
One might say this is too technical an application of the term. People become upset when the factor of partisan politics becomes operant in selection of members of the judiciary and/or decisions issued by judges.
This would ignore the history of our Nation’s court system.
Marbury v. Madison, 5 U.S. 137 (1803), was a decision by the Court that formed the basis by which the Court exercises “judicial review,” the power to declare acts of the other two branches of government—pop quiz! Name those other two branches!—illegal or void.
In Federalist Paper 78, Alexander Hamilton wrote: “The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”
In the waning hours of his term of office, President John Adams sought to appoint Federalist Party circuit judges and justices of the peace before Thomas Jefferson became President. There were some conflicts of interest involved. For example, Chief Justice John Marshall, presciently named after an Indianapolis High School, also was the acting Secretary of State to whom the task of delivery of the appointments—a critical step in the process of appointment—was assigned.
President Jefferson—or “TJ,” as UVA alums call the Man from Monticello—was a Republican. The election he won had been bitterly fought with President Adams, a Federalist. Even Jefferson’s running mate, Aaron Burr—who, while still in office as Vice President of the United States, later shot and killed Alexander Hamilton in a duel that probably was a murder—fought to be President because the Constitution was a bit confusing and Jefferson and Burr had the same number of electoral votes. The Twelfth Amendment to the Constitution was ratified shortly thereafter. President Jefferson wanted to rid the judiciary of any Federalists.
A kerfuffle thereafter occurred and the United States Supreme Court had to decide the matter. Chief Justice Marshall wrote the opinion. Whether to recuse oneself is a matter left to a member of the United States Supreme Court. Chief Justice Marshall declined recusal, although two other Justices did not take part in the decision. One Justice who voted with the Chief Justice, Justice Samuel Chase, a few years later was impeached, largely for his partisan political activities, by the House of Representatives. (He was acquitted at trial in the Senate, over which Vice President Burr, then wanted for the murder of Alexander Hamilton, presided. At the time, the press noted usually it is the murderer who is brought before the judge.) The Federalists won.
All of these proceedings were highly-charged and political. Since those days, we have had partisan battles over the role of the Court accompanied by lamentations over that very partisanship.
The academic debate can be fun. Of course, one tends to lose sight of other aspects of the times. Many of the principal actors had been delegates to the 1787 Constitutional Convention. They were the Framers of the Constitution. They also were white, male landowners. Some claimed ownership of other human beings—amongst those Framers being Jefferson and Washington—and marriage to women, who would not have the right to vote, nationwide, until the early Twentieth Century.
The decision in Roe has been amongst the most controversial of the past hundred years. Justice Blackmun wrote the decision for a 7-2 Court. Justice Blackmun was nominated by Richard Nixon. Chief Justice Burger and Justice Powell, both Nixon nominees, joined in the opinion. Yesterday the Republican Party abandoned efforts to pass anti-abortion measures in the United States House of representatives. Perhaps those Republicans read the decision—I doubt it—and decided Blackmun’s history of women’s reproductive rights was persuasive. Perhaps they read the study that indicates the nationwide drop in crime in the early 1990s coincided with the time Roe really would have had an effect—males in their late teens tends to commit more crime, and there were fewer of them.
The judicial branch inherently is political, as are its decisions. The branch always has been and its decisions always will be political.