August 31, 2018
James Madison wrote that the “accumulation of all powers, legislative, executive, and judiciary in the same hands ... may justly be pronounced the very definition of tyranny.”
In America we have three separate but co-equal branches of government — executive, legislative and judicial. The founding fathers created a system of checks and balances that require a certain level of mutual respect.
The judicial branch must be independent and not be influenced by bias or politics. To suggest otherwise undermines the court’s independence. Unfortunately, the courts are under attack in this country.
In June 2016, then-candidate Donald Trump said that U.S. District Judge Gonzalo Curiel of the Southern District of California could not be impartial when deciding the highly contested future of Trump University because of his “Mexican heritage.” His vitriol toward the judiciary has been nonstop ever since.
Charles Geyh, an Indiana University law professor and expert on judicial conduct and ethics, told the Washington Post that such bravado is sending a dangerous message, “As the leader of the free world, I should be able to do what I choose. The court shouldn’t be able to get involved.”
Geyh said Trump’s attitude shows a lack of understanding of the equal roles of the three branches of government, specifically of the judiciary’s job to serve as a check on the executive branch.
Such attacks upon judges and judicial decisions undermines the legitimacy of the courts. The attacks are not limited to Trump. Recently, Pennsylvania Governor Tom Wolf asked the state’s Judicial Conduct Board to review a decision by a county judge who let a father have unsupervised visits with his child before the father beat the child to death and killed himself.
The child’s relatives are calling for the judge’s removal, and have a petition with 37,000 signatures to bolster their efforts. Not unlike the successful effort of Californians who voted to recall the judge who sentenced a former Stanford University swimmer convicted of sexual assault.
Santa Clara County, California Judge Aaron Persky was removed from office after he sentenced Brock Turner to six months in jail, after prosecutors argued for a 7-year prison sentence, for sexually assaulting a young woman on campus.
Jules Epstein a law professor at Temple University Law School recently wrote in the Philadelphia Inquirer, “We live in a country where the judiciary is under attack ... Americans want and need judges to make tough decisions without looking over their shoulders.”
Samuel Stretton, an ethics lawyer told the Inquirer, “You don’t get judicial discipline just because a judge makes a decision that turns out to be wrong, as long as it was made fairly, honestly and based on the record.”
The sad truth is that we have let politicians put their own personal interests before the interests of the nation. I’m not suggesting blind adherence to the courts. There is always room to challenge an unjust decision.
The place for that challenge is not at a press conference or on Twitter. Judicial opinions can be reviewed. Legislation can be enacted and an executive can use his or her authority to veto, issue executive orders or use the bully pulpit to rally support for change.
A governor or president’s disrespect and contempt for one of the bedrock principles of democracy demonstrates why an independent judicial branch is essential.
The executive branch should not undermine the authority of the judicial branch, nor should the judicial branch circumvent the constitutional foundation of this nation. Our system of checks and balances is a shining example of democracy.
This 231 year experiment in governance works best when each branch accords the others a certain level of deference — not blind faith — but dignity and respect.
— Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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