Many people believe that polarization in our country has broken the Congress.
There is reason to think the country's polarization is about to break the Supreme Court.
If that is about to happen, it needs to be understood, with a view to finding a way, if any, to keep it from happening.
The constitutional framework
The United States constitution provides for the three branches of government of the legislative, the executive and the judicial.
The legislative branch has the responsibility for making the law. The executive branch has responsibilities for implementing the laws that the legislative branch has enacted. The judicial branch is responsible for applying the law in legal cases that are brought before the judicial branch.
The three branches of government are separate and independent.
The independence of the three branches is not absolute, and there are limitations ("checks and balances") on the independence of the three branches.
The President is obligated to implement the laws that Congress enacts, and the President cannot act contrary to the laws the Congress has enacted or do things that are not authorized under the laws enacted by Congress. Under "checks and balances", both the Congress and the judicial branch have capacities to prevent the President from doing that, including through the power of the purse, the impeachment power, and the deciding of specific legal cases.
Also, there are practical necessities that allow for intrusion of one branch of government into another branch. The legislative branch needs information about how laws are being implemented by the executive branch and has powers to demand and get information from the executive branch.
This includes getting information about whether there are conflicts of interest in the executive branch that are causing the laws to be improperly implemented to advance private interests and resulting in laws not being implemented to achieve the public purposes of a law.
The ultimate check and balance under the constitution is the power of the people to vote out of office the President for any reason, including that the people believe the President is disobeying the laws Congress has enacted (whether or not Congress and the judicial branch have done anything to stop the President), and the power of the people to vote out of office members of Congress because the people want different laws or because the people believe that Congress has failed to keep the President from disobeying the law.
Country's polarization has broken Congress
Readers should first think about how bad the country's polarization has become and about how broken Congress is as a result of the polarization. This is not a disquisition on that subject, and readers should decide what they think based on their own awareness and knowledge. For purposes of this discussion, readers should particularly think about whether the impeachment revealed Congress to be broken in the most fundamental way by polarization that Congress was disabled from being able to utilize its impeachment power to remove a President who has committed impeachable offenses. The polarization resulted in the Democrats saying the President abused his power and the Republicans accusing the Democrats of abusing their power by impeaching Trump in the House. See Who abused their power.
Country's polarization is about to break the Supreme Court
Before 2013, there was a degree of insulation of the judiciary from the growing polarization in the country and the resultant debilitation of the functioning of Congress.
This was by reason of the Senate filibuster rule that effectively imposed a 60 vote supermajority requirement for Senate approval of judicial nominees and that forced a degree of bipartisanship in the approval of judges.
In 2013 the filibuster rule was changed to allow majority approval of judges in the Senate, but the filibuster rule continued to apply to Supreme Court justices.
In 2017 the exception for Supreme Court justices was eliminated, and a simple majority of the Senate can approve a Supreme Court justice.
Combined with the raging polarization in the country, the 2017 change in the filibuster rule has destroyed bipartisanship in the approval of Supreme Court justices (it being acknowledged that Gorsuch got 54 votes, which included three Democrats).
The elimination of the filibuster rule for approval of judges has arguably injected full blown partisanship and polarization into the judiciary, and judges are viewed as divided into Republican judges and Democratic judges.
The judiciary can judge for itself the extent to which the foregoing has happened and is becoming ever more pronounced, and whether the judiciary is becoming impaired by polarization in fulfilling its proper role under the constitution.
Right now Congress will not do anything to arrest the polarization in the judiciary, and Congress is plunging headlong towards infecting the Supreme Court with more polarization.
A sidelined majority of Americans may deeply lament the raging polarization of Congress that is proceeding to infect the Supreme Court and that may break the Supreme Court. This sidelined majority of Americans is powerless to do anything against the raging polarization.
The power of the judiciary to resist the country's polarization
The judiciary can capitulate to the polarization and go along with judges being divided into Republican judges and Democratic judges, and individual judges being on one side or the other in the polarization. The judiciary can capitulate to becoming impaired by polarization in fulfilling its proper role under the constitution.
This need not be. The judiciary is an institution that has the capacity to arrest the ruinous polarization. The judiciary can decide that the judiciary will not capitulate and will resist being broken by the polarization in the country..
This requires a will of the judiciary not to capitulate and to resist the polarization in the judiciary.
Such a will can come if the judiciary agrees how calamitous the country's polarization is becoming, and how critical it is for the judiciary not to be impaired in fulfilling its constitutional role.
This calls for soul searching by the judiciary. No other institution or actor can do anything to arrest the polarization. The judiciary needs to decide what will be the judgement of them if they do not resist at this crossroads in American history.
To arrest the polarization that only the judiciary can arrest, the judiciary needs to make a pact among themselves and exert maximum pressure on all in the judiciary to comply with the pact.
The pact of the judiciary is that no judge who is nominated by the President to become a justice on the Supreme Court will serve as such a justice unless the judge has received at least 60 votes in the Senate.
Line of questioning to Judge Barrett
The foregoing suggests a line of questioning that the Dems could put to Judge Barrett.
The line of questioning should draw out from Judge Barrett her views related to the things that are discussed above. Judge Barrett may seek to avoid, and find ways to avoid, giving her views about the things discussed above.
Even if Judge Barrett does not give her views, the questioning will convey important things to the American people.
The ultimate goal of the questioning is to get Judge Barrett to say whether she thinks great damage is being done to the Supreme Court by the polarization that is happening and whether, to resist that from happening, she is willing to make a promise to the American people that she will not serve as Justice of the Supreme Court unless at least 60 Senators vote to approve her.
A. RULE OF LAW QUESTIONS:
1. Please explicate your understanding of the rule of law under the constitution, including the separation of powers in the three branches of government, "checks and balance" among the three branches, conflicts of interest and private interests versus public interests, constraints on President derived from Congressional, judicial and Department of Justice oversight and review of President, Congressional right to information from the President as part of oversight, and relevance of express constitutional provisions and constitutional norms that come into being over time.
2. As regards what is an impeachable offense of the President under the constitution, if the House impeaches a President and the Senate convicts, what room is there, if any, for judicial review of the Presidential conduct or actions that are the subject of the impeachment and conviction, i.e., do you think the Supreme Court can substitute its judgment for that of the House and the Senate about whether the conduct and actions are impeachment? Do you think the President has any due process rights in an impeachment, and that the impeachment and conviction of the President could be set aside by the Supreme Court based on a claim by the President that he was denied due process?
3. Do you believe a sitting President can be indicted?
4. What limitations, if any, do you believe there are regarding the exercise of the pardon power by the President? If a President was bribed to exercise the pardon power, do you think the pardon could be invalidated by the Supreme Court through appropriate judicial proceedings? Do you think exercising the pardon power for a bribe is a crime for which the President can be indicted (whether while sitting or after term of office)? Short of exercising the pardon power for a bribe, can an exercise of the pardon power be so exclusively for personal or family benefit that the pardon could be invalidated by the Supreme Court and/or be criminal?
5. What do you consider the importance of determining facts or truth for the purposes of the judicial branch properly fulfilling its role?
6. In going about determining truth and facts, what significance does the judiciary give to contemporaneous notes made by a party to a conversation about the conversation for establishing at a later date what was said in the conversation?
7. In your time as an appellate judge, as regards lawyers and others appearing before you and making statements to you or in front of you, do any instances stand out in your memory of your believing someone was not being truthful? Can you describe one or more of such instances without breaching any confidentiality constraints you feel bound by?
B. POLARIZATION QUESTIONS
1. What are your views about the positive and/or negatives effects on the judiciary of the Senate changing the filibuster rule in 2013 so that it did not apply to lower courts and of the 2017 change that eliminated the filibuster rule for Supreme Court justices?
2. What are your views about whether the country's polarization has affected the judiciary, and how so?
3. From the perspective of what you desire for the Supreme Court as an institution, do you wish for reinstatement of the filibuster rule, and, if so, how strongly do you wish for the same?
4. Do you believe that the absence of the filibuster rule contributed to how Judge Kavanaugh was treated in 2018? If you favor reinstatement of the filibuster rule, would a reason for that be that such result in better treatment of Supreme Court nominees?
5. If you promised you would not serve as Supreme Court justice unless you received at least 60 votes, do you think that would achieve a significant benefit for the Supreme Court as an institution?
C. CIRCUMSTANCES SURROUNDING YOUR NOMINATION
1.Do you think there could be circumstances surrounding your nomination for Supreme Court nomination that, if you were aware of the circumstances, you would consider it wrong for you to accept the nomination and you would not accept the nomination?
2. To what extent did you give thought to circumstances surrounding your nomination? If had any such thoughts, can you tell us what those thoughts were?
10/27/2020See also
Appeal to Judge Barrett
3/24/22
