December 17, 2021
Human beings seem programmed to want fairness: justice. We want to know that our leaders are protecting us from those who are violent or taking our property. Most of us want a just world, one that we can count on to keep us safe or remedy abuse.
The system of justice that we have in the United States is largely the replica of the British system. We have judges, juries "of our peers," and prisons that enforce sentences. We also have two opposing lawyers or teams, one defending the accused and one prosecuting the accused who have been charged with violating the law.
This justice system has improved greatly since the times in England when "hanging judges" sentenced all sorts of the underclasses to death by hanging, even for crimes short of murder.
The changes in the American system are indeed improvements. For the most part, juries of one?s peers now include women and people of color, who were denied this role in the past. Even the Supreme Court now has women and people of color, which provides a more balanced talent pool to provide justice that is more fair.
But, the Federal justice system differs from the 50 state justice systems, the difference in some cases detrimental to justice. Supreme Court judges, Federal Appeals Court judges, and district court judges, are all nominated by the president and confirmed by the Senate. State and community judges are mostly elected by voters. Elected judges are always eying the next election, and the justice that they provide often shows this. It is a terrible system.
But even presidential appointments and Senate confirmations do not always provide quality and good legal outcomes. There have been instances of terrible nominations (which the Senate has had to veto) and good nominations which the Senate prevented from vetting.
A partisan politician, such as Senate leader Mitch McConnell, violated all precedent when he prevented President Obama?s nominee, Merit Garland, from Senate confirmation. McConnell?s claim was that it was too close to an election, a rationale quickly contradicted when President Trump was midstream in his reelection campaign and his nomination for a vacant Supreme Court seat was rushed through approval.
In the past 75 years, since President Franklin Delano Roosevelt was thwarted by a reactionary conservative Supreme Court, our Courts have functioned with judicial fairness, regardless of the political party of the nominating presidents. Republican courts have ended segregated education, protected voting rights by ordering oversight by the courts of states who historically violated Black voting rights, and even finally treated women as equal citizens in providing a national right to control over their own bodies.
But there has been a gradual degradation of the nominating process when the Republicans began to declare their political rivals "enemies." Appointments to the federal and Supreme Court, lifelong tenures, became more political. But as long as there was at least a five-four court with one justice serving as a swing vote, the Court ambled along.
It is now poisonously skewed six to three, which makes the court seem political rather than judicial. The public is losing respect for the court as the single fair deliberative body protecting the constitution of the United States. The court discussion about the Mississippi attempt to lessen or entirely revoke women?s reproductive rights is so out of line with the country?s majority opinion that there may well be consequences for the court.
It is a serious problem to be reminded, on film, of the confirmation hearings of the Trump-appointed judges who said, under oath, that they believed in respecting prior rulings. Now, they believe it is time to overturn a 50-year standing law that allows women full citizenship and autonomy.
We cannot have a country where half the states (those with the largest populations) empower women with equal rights and half (rural) that deprive these women of these rights.
If Roe v Wade is overturned, Congress will have to pass a new law that protects women?s right to determine their own future. To do that, they will finally have to end the filibuster, that most undemocratic tool of minority power.
Dr. Laina Farhat-Holzman is a historian, lecturer, and author of "How Do You Know That? Contact her at Lfarhat102@aol.com or www.globalthink.net.