The Pakistani Spectator

By Daniel S. Tow

www.singingsql.com

On the notion that this might be of interest to an audience in Pakistan, I’m offering an American perspective on the US system of government, especially on the American system of courts, the Judiciary.

Most law in the US is enforced through state courts, which have judges put in place through sets of rules that vary between the states. I think most state lower courts (the first courts to see most legal cases) have locally elected judges, and that’s what we have in California (where I live). Judges we elect in California are generally people with proven backgrounds and education in the law, not typical politicians representing political parties. (We usually don’t even know the party of the person running for a position as a judge, just his or her qualifications in the law.) I think most states also have, as in California, higher judges (state appeals courts and state supreme courts) appointed by whoever is governor of that state at the time there is an opening for a new judge (through retirement or death, mainly), and approved (if the state legislators agree) by a majority in the state legislature.

(The governor of a state is sort of that state’s equivalent of a president, handling matters that are local to that state, and the legislature of a state is like that state’s congress, passing state laws. Each state has its own system, though, with its own state constitution, as long as that constitution is reasonably consistent with the US Constitution, and each state has, like the US government, a judicial branch, in charge of interpreting and enforcing the laws (state laws, in the case of state courts), a legislative branch, in charge of making the laws (state laws, in the case of state legislators), and an executive branch (headed by state governors) in charge of executing the laws, especially in charge of running the state agencies that are funded by state government budgets. These three separate branches, in both state and federal governments, are key to preventing any one branch from having too much power and just completely taking over, especially at the federal level. Each branch has “checks and balances” from each of the other two branches that are designed to prevent too much power accumulating in any one branch, and especially in any one person. Thus, for example, appointed judges are usually appointed for life (appointed by the executive branch, and approved, or not, by the legislative branch, so they can decide cases without worrying about getting fired if their decisions are unpopular. Also, though, judges can be removed by the legislative branch (not by the governor) if the legislators hold an “impeachment” (which is basically a court of the legislature) that determines that the judge broke some serious law or grossly neglected his or her duties. In theory, this makes judges answerable to legislatures, but in practice it is rare to hold courts of impeachment and even rarer to win the something like 2/3rds majority required to “convict” and throw out the judge (where enough legislators are honest enough that they won’t vote for impeachment without a very good, honest reason), so judges don’t worry about being impeached as long as they do an honest job, even if their actions are very unpopular.)

(All that I am saying about the three branches, and the checks and balances between the branches, applies at the federal level, too, with the president in charge of the executive branch, the Congress (House of Representatives and Senate) in charge of the legislative branch, and the US Supreme Court in charge of the judicial branch.)

The federal judges at every level (lower courts, appeals courts, and the supreme court) enforce and interpret federal laws, only, and they are much less numerous than state judges, and handle far fewer cases, although their cases are on average more important, with more at stake. The only way that state-law cases can sometimes reach the federal courts is after a state supreme court has decided a case (or chosen to ignore a case), based on that state’s laws and constitution, the US Supreme Court (with 9 judges, each with an equal vote) can take the case if it appears that the decision of the state supreme court or lower state court might have been in conflict with the US Constitution, the highest law in the US - see http://www.usconstitution.net/const.html , especially with the very important rights in the Amendments. (This site has in-depth discussion of the constitution and how it works, too, I think, if you want to learn more, including most of what I’ll say, here, about the rules of the US government.) If any state or federal law in the US contradicts the US Constitution, the highest law, in the US, especially the rights granted by the constitution, the US Supreme court has final say in determining that there is a contradiction, and when they determine this, they declare all or part of the lower law to be invalid - the US Constitution has final say, according to however the US Supreme Court interprets the Constitution.

In practice, though, the US Supreme court is just 9 people who take a substantial amount of effort to decide each case, so they can only decide a small fraction of the state-court cases that they are brought on final appeal. Therefore, they refuse to decide most cases they are brought, leaving the state-court decisions unchanged, and they typically only take a case if the case itself is really important or if they think it will settle an important legal question. The same goes for cases that come from federal law - they will leave decisions of lower courts unchanged, unless the case itself is really important or if they think it will settle an important legal question of interpretation of the US Constitution, although with federal-law cases they are freer to take a more minor case just because they think the lower court messed up. Although they take few cases, the US Supreme Court influences many cases, because the judges in the lower courts find it embarrassing to be overruled by the Supreme Court. In particular, if an earlier judgment of the Supreme Court sets a clear “precedent” showing the opinion of that court, lower courts try very hard to make their judgments consistent with that precedent. They know that if they behave inconsistently with clear precedents, they will not only be overruled, but their own judgment will be soundly criticized in the process. The Supreme Court even tries hard to be consistent with its own, earlier judgments, a sort of respect paid to the former judges. Only when it becomes really clear to current judges that the earlier judgment was an important mistake (not just a different opinion that had good arguments) will current judges overrule past precedents.

In theory, the US Supreme Court is the ultimate decider of all questions in the US government, because what they say cannot be overruled, according to the US Constitution. In practice, though, their power is quite limited by long tradition - they really restrain themselves to just interpreting the law. If they ever went really nuts and started to say that their “interpretation” of the law said something that the law obviously didn’t say, and started issuing orders to basically take over the responsibilities of the other two branches, they’d likely just be ignored and would thereby make themselves less powerful, because they don’t directly control any means of enforcing their will - for example, they have no direct control of the military or the federal law enforcement, which are both under the control of the president.

(In theory, this control of the powers of enforcement might make the president the ultimate decider of all questions in the US government, because he could just order the military and the federal law enforcement to ignore anything said by the other two branches of government. In theory, though, the military and federal law enforcement should ignore any such orders from the president, if the Supreme Court says that those orders are illegal. The free press has an important role to play, here, because a free press would help members of the military understand that something grossly illegal was going on, and that lots of people want the illegal orders to be resisted. (Like most good militaries, the US military has a long tradition of how important it is to follow orders from a superior commander, and the guy at the very top, the most-superior commander, giving the topmost orders that must be obeyed is the president, but any US military order may be (actually in theory must be) disobeyed if it is clear that the order is illegal, and the ultimate authority that would make it completely clear that the president was issuing illegal orders (as would be reported by the free press) would be the US Supreme Court.) I say that this is the case in theory because in practice no US president has yet ever tried to do this, to stand clearly behind orders even after the US Supreme Court declared the president’s orders illegal - more on this, later, though!)

To answer your question about US Supreme Court justices, though: They are appointed for life by the President, when openings among the 9 judges arise (usually through death or disability at very old age) and the appointments are approved (or not) by the US Senate. The US Senate is pretty vigorous about fighting appointments that aren’t liked, so presidents have to make pretty reasonable appointments if they want them approved, usually. Any given president rarely gets a chance to appoint more than one or two Supreme Court justices (out of the 9), because each appointment is for life, and previous presidents who wanted to have a lasting influence on the court tended to appoint relatively young judges.

Forcible removal of US Supreme Court justices (judges) is really rare, but possible. The procedure is that the US House of Representatives first must produce a majority vote that the justice probably broke some serious law or grossly neglected his or her duty. If the House of Representatives produces this majority vote (which is rare, itself), then the US Senate holds what amounts to its own court to decide the guilt of the accused justice. If 2/3rds of the US Senate then votes that the justice was guilty of the accusation (and this is really rare, if has even happened at all), then the justice is removed from office. This whole process is called “impeachment,” and it actually applies to removing anyone from either the judicial or the executive branch, including removing the president or the vice president, which can happen following exactly the same rules. (Only two presidents were ever “tried” by the US Senate, and both of them were found not guilty and remained in office. The tradition is very strong that senators will not throw out a president lightly - the crime has to be serious and well-proven, so even presidents who are very unpopular with the Senate, but who are honest, have little to fear from impeachment - enough honest senators who respect the tradition will refuse to impeach even a president they hate, if the crime was minor or the proof of the crime is lacking.) The president has no role in impeachment at all, so the only way a president can remove a Supreme Court justice would be to persuade the congress to impeach that justice, which is very unlikely unless that person is so clearly guilty of a serious crime that the congress would not need to be persuaded.

I mentioned that I’d return to the subject of a president abusing his power through control of the US military and federal law enforcement. Currently, there is considerable controversy in the US about our current president expanding his powers beyond the powers that US presidents have had in the past. In particular, he has held so-called “enemy combatants” without trial. In the past, it has always been clear that the US military can hold prisoners of war without a trial, and that isn’t controversial. The claim from the president is that “enemy combatants” have no more rights to a trial than traditional prisoners of war. The problem, though, is that traditional prisoners of war are normally obvious soldiers from a country we are fighting a clearly-defined war with, and who will be released when that war ends, while the “enemy combatants” (accused terrorists, that is) can be citizens of any country at all, including the US, and the “war” in this case is unlikely ever to have a clear end (so the “prisoners of war” might never be released), and the executive branch is claiming the exclusive right to decide who is, and who is not, an enemy combatant, with no “checks and balances” at all from the other branches. To take an extreme and admittedly unlikely example, the president could in theory declare that a US Supreme Court justice that he didn’t like was an “enemy combatant” and lock him or her up without trial forever. Under this “enemy combatant” idea, we have to simply have faith that the president will be honest about who is really an enemy combatant, and about whether there really is very good reason to think that he or she is an enemy combatant, and about whether the declared “enemy” is really an enemy in a conflict that deserves to be treated like a real war. However, there are three areas where the policy could be horribly abused, if the president is not so honest:

1) The president could declare someone to be an enemy combatant simply because he is a personal enemy of the president.

2) The president could fail to establish proper proof that the enemy combatant really is an enemy combatant - maybe, for example, it is someone who was falsely accused by his own personal enemy, or even is someone who is a friend of the US who was accused, to undermine the US, by a real enemy combatant! Without a proper trial where both sides can present their case, as happens in the judicial system, it is very hard to know whether the accused is really guilty.

3) The “war” involved could be just some fiction invented by the president to get around having certain classes of “crime” tried by the judicial branch, effectively transferring powers over judging that class of crimes to the executive branch. For example, the president could declare a “war on drugs.” (Past presidents have even used that phrase, although they haven’t applied it in this way to create “enemy combatants.”) If the president declared a “war on drugs” and applied the enemy-combatant theory to that “war,” he could then bypass the judicial branch for accused drug criminals and take charge of locking up all accused drug criminals without trial, forever. Even scarier, the president could in theory create a whole new class of “enemy” that hasn’t even broken a current law (bypassing not only the judicial branch, but the legislative branch, as well). For example, he could in theory declare a “war on immorality,” and lock up anyone he thought was “immoral” (anyone whose views he didn’t like, that is) as an “enemy combatant,” without trial, forever.

Now, although I don’t like the current US president at all, and didn’t vote for him in either election, I don’t actually believe that he, or the US military, is locking up “enemy combatants” just to get rid of people they don’t like - they really believe that these people they are locking up are likely terrorists, and that the enemy combatant policy is important to protecting the US. Whether they are applying the enemy combatant theory in a way that they consider to be honest and in the best interests of the safety of the US isn’t the point, though: my point is that by bypassing the US courts in this way, they make it much easier for future presidents who might want to make themselves dictators, more or less. This policy makes it far too easy for us to lose our precious democracy, with its vital “checks and balances” designed to restrain even a president who wants to become a dictator, and this is a far greater danger to the US than any number of terrorists, in my opinion.

The job of the US Constitution is not to make things easier when we have perfect leaders – any system of government, even a dictatorship, works quite well when leaders are perfect! The job of the US Constitution is to protect our freedom when we may find ourselves with highly imperfect leaders, even with horrible leaders, for a while, to prevent those leaders from grabbing too much power to act on their improper ambitions. Unconstitutional expansion of presidential powers that enable even the best president to take power that belongs in the other branches of government creates a lasting threat that future, bad presidents will horribly abuse those same powers.

The bad news is that abuse and expansion of presidential powers in the last 6.5 years has gone on far longer than it should have, without sufficient challenge from the other branches of government. The good news is that this appears to be starting to change. In the Congress, now that Democrats have a majority in that branch, there is much more resistance to the expansion of presidential powers. Finally, too, the US Supreme court has agreed to consider a case that has the potential to establish the illegality of the whole “enemy combatant” theory that a president can, alone, decide who is an enemy combatant, and lock away any such combatant, for as long as he wishes, all without any checks and balances at all from the judicial branch. I don’t know what they will decide - the 9 judges are mostly appointed by conservative presidents, including 2 by the current president, himself, but I fervently hope they’ll do the right thing for the sake of our future democracy, and that the current president, and future presidents, will not attempt, for the first time in US history, to openly defy their ruling.

By Dan Tow

www.singingsql.com

Last 5 posts by Dan Tow

• Just Taxation - October 31st, 2008
• New American Voters; Guilty Until Proven Innocent? - October 22nd, 2008
• Safety in “Big Daddy’s” Shadow? - September 8th, 2008
• Coping with Limits to Control in Politics, Life, and Bridge - August 26th, 2008
• The Right to Remain Silent - June 18th, 2008