Midlands Voices: Preserve our independent judiciary

The writer, of Omaha, is a lawyer.

The federal courts are under attack. Powerful political voices are calling for a significant curtailment of federal judicial power. This affects our own federal court here in Omaha.

As noted recently in the New York Times, all but one of the current Republican candidates for president are calling for radical restrictions on federal judicial power — including that of the United States Supreme Court.

One candidate advocates term limits for federal judges. (The Constitution gives them life tenure.)

Another candidate wants Congress to have power to overturn Supreme Court decisions on a two-thirds vote.

Yet another wants the Supreme Court to be barred from ruling on such topics as same-sex marriage or prayer in the public schools.

A trailing candidate wants an entire federal circuit court abolished (the Ninth Circuit, headquartered in that den of liberal sentiment, San Francisco).

Finally, several candidates want to use Congress' power over the courts' budget to "rein in" what they perceive as unbridled judicial activism. This would include eliminating law clerks, abolishing law libraries, etc.

In recent years, the federal courts have become some politicians' favorite whipping boys. Federal judges have not had a pay raise in years — and are unlikely to get one anytime soon. It now takes many weeks or months — sometimes years — to get a new judge confirmed by the U.S. Senate. The federal courts are chronically short-handed. There is currently a 10 percent vacancy rate.

This anti-court animus is not limited to federal courts. Recently, three Iowa Supreme Court judges were voted off the bench because of their votes in favor of abolishing Iowa's ban on same-sex marriage.

The federal courts lack a champion to speak for them. Federal judges are reluctant to speak out themselves.

The Constitution itself ill-defines the scope and power of the federal courts. The greatest power the Supreme Court has — the power to rule an act of Congress unconstitutional — is not found in the Constitution. Rather, it comes about by judicial rulings and tradition.

The Congress has broad power to establish — or limit — the power of the Supreme Court. Whether Congress could forbid the Supreme Court from hearing, say, same-sex or prayer-in-school cases raises an undecided constitutional question and almost invites a constitutional crisis.

All is not lost. The court has weathered these storms before. Even FDR, at the height of his powers in 1937, failed to emasculate the Supreme Court with his "court-packing plan." Those of us old enough to remember the 1960s recall the many billboards demanding, "Impeach Earl Warren!" No move was ever made to impeach Chief Justice Warren.

Those who support the current configuration of judicial power argue that these radical types of proposals essentially threaten the rule of law. In other words, these proposals seek to put the federal courts squarely under the control of a political branch — namely, Congress. This effort represents an attempted politicization of the federal courts.

One thing we know for sure: The Founding Fathers wanted an independent judiciary — one not subject to the whims of the political branches. Indeed, Alexander Hamilton, in one of the Federalist Papers, argued that a strong, independent, national court was one reason for adopting the Constitution itself. (There was no such court under the prior Articles of Confederation.) We criticize other countries for not having independent judiciaries.

The arguments of Republican political candidates are ironic in one sense — Republicans are a majority on the Supreme Court and in the lower federal courts as well.

Let us hope that those who wish to tear down the federal courts fail in this effort. An independent judiciary is a terrible thing to lose.

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