COMMENT: Judge Jackson & the Lack of Judicial Impartiality
Martin in this very illuminating post you say:
“Clearly, the most dangerous flaw appears to be intentional – Congress appoints judges not lawyers”.
You’ve missed an important point here.
At the time of the founding most judges were “appointed” by the people; through elections!
Yes, with the federal courts it doesn’t work that way. But, with the inferior courts at the state and local level it still does; though the right has been assailed and so somewhat curtailed.
Still, it is estimated some 50,000 judge-ships are subject to the ballot; a power, like so many others, fully squandered by the American people.
The implications of an electorate organized to exercise these powers would have serious implications at the federal level just the same and these facts should not be forgotten or dismissed.

H

REPLY: Yes, the state and local levels are varied. My discussion was confined to federal, which is what Ben Franklin was opposed to. There are many regions in the state and local level where the judges are elected by the people. This too I see as wrong for they are still being sponsored by the Republican or Democratic Party and are declared as members. This still intertwines politics and does not eliminate the problem of bias.

I believe that Franklin was correct. The judges should NOT stand for election for that will transform the law into just the will of the majority. There was a case Nix v. Williams, 467 U.S. 431 (1984) which resulted in changing our constitutional rights because politically they demanded that a black guy be found guilty for killing a white 10-year-old girl. The police could not simply transport him after his lawyer got him to self-surrender. The lawyer warned the police not to question him on the way to the jail. They did any way. The officers began a conversation with respondent that ultimately resulted in his making incriminating statements and directing the officers to the child’s body.

A federal court in a habeas corpus proceeding found that the police had obtained respondent’s incriminating statements through interrogation in violation of his Sixth Amendment right to counsel. Brewer v. Williams, 430 U. S. 387. They had to put him on trial again using evidence concerning the body’s location. Legally, that should have never been allowed. But because this was a black man who had mental problems and a 10-year-old white girl, the thought of letting him walk was just politically unacceptable. The court thus created a rule known as the Inevitable Discovery Rule meaning that it was irrelevant that he showed the police where the body was buried, because the court ruled that they would have eventually found the body.

The impact of that political decision is that police really do not need a search warrant today, they merely have to sweep an unconstitutional illegal search and seizure under the table and rule that had they obtained a search warrant, they would have inevitably found the same evidence.

This is the problem when you mix politics with law. In order to make sure that this one black guy was punished, the entire society had to be stripped of our absolute right against illegal search and seizure. If the government wants you, you have no Constitutional rights whatsoever. Law has become the justification for legal persecution. Sir William Blackstone, upon whose seminal legal work was to found the foundation of American law, wrote:  It is better that ten guilty persons escape than that one innocent suffer. That is the way the law is supposed to work. When you mix politics with judges, there is no rule of law that remains. The statue of justice is supposed to be blind symbolizing impartiality. That is merely fiction – like once upon a time.

The corruption of the Rule of Law was always an English past time, which the Americans inherited and greatly improved upon. The idea of justice is merely a fictional dream. Charles Dickens wrote in his introduction to Bleak House;

“This is the Court of Chancery ..• Suffer any wrong that can be done you, rather than come here!”