"The Charles Goyette Show"
"The congress is the first branch of government..."
Sat Feb 3, 2007 04:04

2/2/07 "The Charles Goyette Show" 1100 AM Phx AZ
"The congress is the first branch of government..."

It says the Congress is the first branch of government. It is mentioned in Article 1. They clearly have all the power to make the law, and judges should not ...

MAY 23, 2001


Judge Abner Mikva is one of the United States’ most distinguished jurists. A cum laude graduate in law from the University of Chicago, he holds honorary doctoral degrees from several universities. He was a law clerk for U.S. Supreme Court of Justice Sherman Minton, and those of you who know anything about the American profession of law know that to serve as a clerk for a Supreme Court justice is for many people the first step on a very distinguished career.

Judge Mikva was also a partner in a law firm with the late Supreme Court Justice Arthur Goldberg. He has taught in some of America’s leading law schools.

Judge Mikva became involved in politics as a member of the Illinois General Assembly for ten years in the ‘50s and ‘60s. He then was promoted – if that’s the proper term – to the U.S. House of Representatives, where he served for five terms, ten years, including membership of the Ways and Means Committee, which determines the budget, and the Judiciary Committee, which determines the laws. He resigned from the House in 1979, to be named to the U.S. Circuit Court of Appeals in Washington D.C. Because of its location in the nation’s capital, that is the court immediately below the Supreme Court that reveals many of the most important constitutional issues before they are set up to the Supreme Court for final decision.

He left the Court of Appeals in 1994 after 15 years, including the last three as chief judge. At that time in 1994, President Clinton selected him to be the White House counsel, a position he held for more than a year. Since leaving Washington, he has returned to teaching at the University of Chicago and the University of Illinois College of the Law.

He is also a fellow at the Institute of Government and Public Affairs at the University of Illinois. He is on the executive board of the Central and Eastern European Law Initiatives, an affiliate of the American Bar Association, and is the author of a political-science textbook called “the American Congress: The First Branch.” I wonder whether that is a judgement on how important the presidency is or for that matter the third branch of the U.S. Government, the judiciary. He has also written law school textbooks.

His topic this evening is “the importance of the independence of the judiciary within the U.S. legal system.” Afterwards we will look forward to questions-and-answers and discussion. Judge Abner Mikva.

Mikva: Thank you very much for that very generous introduction. Every time I hear myself introduced lately, it sounds like somebody who has not been able to hold a job anywhere, not in any branch of government, not in teaching.

I still remember my late father-in-law, who obviously had that same concern, because when I was appointed to the court in 1979 – a life appointment – he called me up long distance and paid for the telephone call, which was impressive in itself. He said, “This will be the first you have had a steady job since you married her.” You can imagine how dismayed he was when I left that steady job in 1994 to take a political job again, one that indeed I only stayed in for a year.

But I want to talk about that idea of lifetime appointments and what that says about judicial independence, because in the United States we have two systems. We have the appointed system, where the judges are appointed for life, and I will get back to that because that is not really what they are appointed for. Then we have an elected system. Most of the states elect their judges, including judges of the highest courts in the land, in regular elections. I always find it difficult to try to reconcile a judge, who is supposed to stand above politics and sit on that high bench and wear that black robe and be dispassionate about things, getting down there and doing all the things that politicians have to do to get elected. Yet our state judges are required to do that every four years or six years and some states 10 years. It has been a long struggle trying to change that.

Every time we try to suggest that a state should also appoint their judges, the people resisted immensely, because to their notion – even though they do not know who their judges are, who they are voting for, because as you can imagine the list of judges is huge – they still think that somehow the are retaining democratic control by voting for them. So we continue to have elected judges alongside those federal judges who are appointed for life.

Let me talk about that “appointment for life.” They are not really appointed for life. There is nothing in the Constitution of the United States that says that the judges shall be appointed for life. It says, “They shall be appointed for their good behavior,” whatever that means.

When one goes back to 1789, when the Constitution was first ratified, good behavior meant that you would be immune from political removal, from being yanked out of the judgeship by an angry king or an angry president or an angry governor or whatever. But it did not say “for life.”

There is a wonderful story about this person in Tennessee who had been an old political hack working for a political machine called “the Boss Crump machine,” and he spent enough time in the precincts that he finally was appointed a federal judge. Of course, that is a very “cream” appointment. You get these big chambers, this big office. Some of his old cronies came to visit him shortly after he was appointed and walked into the office and were admiring the sights and were admiring all of the arrangements that went with his being a federal judge. Then one of them looked at the judicial commission that designated him a judge. It was hanging on the wall, signed by the President of the United States, and it said, “shall be appointed during his good behavior.” One of the cronies, one of these political hacks, said to the judge, “What does that mean, good behavior?” The judge said, “Well, that means that if I do not get caught with a woman in a hotel room or stealing somebody’s estate, I will be here for life.” And the crony scratched his chin and he said, “ Well, if it was up to me, I would rather have a term certain.”

Good behavior has in fact meant life, for very seldom have we removed judges from office and only in the most extreme circumstances. In order to be removed under current practices in the United States a judge has to be impeached just the way the President of the U.S. has to be impeached in order to be removed. We had only few of them in the 200 years of the federal judiciary. So it means for life.

But just as the Constitution does not say that the judge shall be appointed for life, so it does not say anything about their independence. The word “independent” does not appear anywhere in the Constitution of the United States. There is nothing that really indicates, as far as a matter of constitutional law, how judges were supposed to behave or expected to behave. To find any understanding of this notion of judicial independence, one has to go back to read some of the essays of the members of the Constitutional Convention who were there and what they expected from federal judges, and what they expected was an independence of spirit. They expected judges to be selected by the President and confirmed by the Senate from the “crème de la creme” of the United States’ lawyers, and that therefore, they would as a matter of preference, as a matter of character act independently.

But even those expectations might not have come to fruition were it not for the efforts of one important member, one important figure in American history. Every country has to have certain key people in the right places at the right time. We had John Marshall in the right place at the right time. John Marshall is one of my personal heroes, because he too had trouble keeping a job. He also served in all three branches of the government. He had been Secretary of State before he was appointed Chief Justice. Before that he had been in the state legislature and in Congress. He was on the [Supreme] Court early on when an important case came up as to what the power of the President was to interfere with judges and also what federal laws meant, what a particular law that Congress had passed meant. Chief Justice Marshall said at the time: “It is the right of the United States Supreme Court to say what the law means.”

That is the famous case of Marbury vs. Madison, and it was that case that really established not only the independence of the judiciary, but also the finality of the judges’ decision. So that because they were final, as someone said we are final, not because we are right, we are right because we are final. You can not take an appeal further than the United States Supreme Court.

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