The Wisdom of Checks and Balances

Constitution Day is observed Friday, September 16, 2016. In celebration of the ratification of the U.S. Constitution, IAALS is joining with others around the country to share perspectives on the history, impact, and promise of the Constitution. This blog is part a series of Constitution Day posts, authored by members of the O'Connor Advisory Committee to our Quality Judges Initiative, which are collected here. Join the conversation in the comments below, or on Twitter with #ConstitutionDay.

On September 17, 1787, the Framers signed the United States Constitution. The day is observed by some lawyer and judge groups but, unfortunately, largely goes unnoticed by the rest of the population. Our Constitution is masterful, and deserves to be celebrated by all of us.

"In particular, we should give thanks for the carefully crafted balance of power among the three branches of government that the Framers created. The Executive, the Legislative, and the Judicial branches are all in equipoise."

It may seem strange for me, as a former Governor of a state and former Presidential Cabinet member—whose whole experience has been in the Executive branch—to point out the wisdom of balance. But, quite the contrary, I recognize the need for checks and balances. Power concentrated in any one branch of government leads to excess. In the Federalist essays, Alexander Hamilton argued that “the complete independence of the courts of justice is peculiarly essential in a limited Constitution.” By “limited” he meant a system that never would allow for the concentration of power. The judiciary’s responsibility, according to Hamilton, was to prevent the abuse of power by the other two branches of government.

This is a particularly hot topic these days. There are those in our society who claim that judges should be reined in, that they are violating the will of the majority, and that they are exceeding their constitutional mandate.

I disagree. And, don’t get me wrong: I do not like all judicial opinions or all judges. In fact, I take great issue with some of each. But, what I do not take issue with is the importance of having a judicial system that can operate in a fair and impartial way, insulated from partisan political pressures.

The United States Constitution created the purest version of that separation. Federal judges are appointed by the President, subject to the advice and consent of the United States Senate, and then serve “during good behavior.” They are also protected during their tenure from any reduction in salary.  Hence, they have lifetime tenure, with guaranteed income. Neither the President nor Congress can punish them for unpopular decisions.

State judicial selection systems generally incorporate more opportunities for public input—up to and including partisan political election of judges in many states. I am not advocating for the federal selection system, because I do believe that state court judges, who are much more ingrained in our lives, should be subject to some level of accountability. In New Jersey, judges are appointed by the Governor with the approval of the Senate, and they come up for reappointment to age 70 after an initial seven years.

But, irrespective of the method of selection, the goal should always be to select judges who can be fair and impartial, who are not afraid to make unpopular decisions, and who answer to the rule of law, not to political pressures. And, the goal should be to keep judges in office who are indeed fair and impartial—even if they make politically unpopular decisions.

For example, right now, in Kansas, there is a battle waging. The Kansas Supreme Court has contravened Governor Brownback’s agenda, and there is a concerted effort to unseat members of that Court who are up for retention.

I do not know whether the Kansas decisions are appropriate under the Rule of Law, and the Kansas Constitution. What I do know is that as I headed into the voting booth as a Kansas voter, I would not be asking myself whether I agreed with the judges’ decisions, but would rather be asking myself whether I believed that their decisions were fair, impartial, and an appropriate exercise of judicial oversight. Balance of power does not always tip one way—that is the whole idea.

So, as September 17 comes and goes, let us remember that our Constitution asks of us a capacity to remember that power concentrated in one or two branches of government is never a good thing. The three branches of government must all be strong, and the courts actually have a constitutionally mandated duty to measure the acts of the legislature and the executive against the law, not against political will.