Senior Federal Judge Allan Edgar told the Chattanooga Rotary Club on Thursday that the “widespread attempt to erode the independence of the judiciary” is a major problem in the country that goes unnoticed.
Judge Edgar said the three separate branches of the government are “vested with various checks and balances on the other branches;” therefore, the judiciary branch’s most important check and balance is to make sure the executive and legislative branches follow “the rule of law.”
Though the President and Congress are elected by majority vote, “it is not our system of government that the majority can then do whatever it wants, limited only by political possibility,” said Judge Edgar. The Constitution places us “all subject to a rule of law that puts limits on politics.” He said the judicial branch must “say what the Constitution means,” therefore judges must be “non-political” and “independent.”
Judge Edgar posed the question, “Why is judicial independence crucial to the functioning of our democracy?,” which he answered by citing Alexander Hamilton’s Federalist Papers. Hamilton wrote that independence of the courts is essential to upholding a “limited Constitution.” Judge Edgar explained that when he says “limited” he is referring to the limitations placed on the executive and legislative power from “infringing on citizens’ rights.” Therefore, judging must be “separated from the legislative and executive powers,” he said.
Hamilton noted that the judicial branch is the weakest branch because it does not posses the “sword” or “purse,” said Judge Edgar, so it must be protected from “attack from other branches.”
Judge Edgar said care is not being taken to prevent such attacks, particularly from the legislative branch. Judge Edgar said the Terry Schaivo case is the most recent example of an attack on the judiciary branch.
“Here we had the Congress of the United States, which apparently was unwilling to accept the results of years of litigation in the state courts, pass a piece of legislation giving special treatment to one half of a family, and sending the case to the federal courts. When he did not get the result he wanted, the then majority leader in the House went on a rant about an ‘arrogant out of control judiciary,’” said Judge Edgar.
Furthermore, he noted that a local editorial commented on the case saying, “It is sickening that our courts are on the side of death.” Judge Edgar said such comments attack judicial independence and demonstrate a “serious misunderstanding of how the courts make decisions.”
“Judges take an oath to uphold and defend the Constitution, not anyone’s religious or personal beliefs. The courts are not a political institution,” said Judge Edgar.”
Judge Edgar also spoke about “the circus surrounding the recent nominations to the Supreme Court.” He said members of the Senate Judiciary Committee treat nominees the same as they would a politician by asking nominees how “they would decide specific cases.” Judge Edgar said, “It is not appropriate to ask a nominee how he or she would vote on abortion, Roe versus Wade, or anything else. This is because, of course, a judge or justice cannot be perceived to be fair and impartial if the judge has already expressed an opinion on matters that come before the court.”
However, Judge Edgar said he believes that it “is appropriate to ask a judicial nominee about his or her general judicial philosophy” and their “approach to interpretation of the Constitution and federal statutes.”
A nominee’s “qualifications, temperament, and integrity” are what need to be examined, said Judge Edgar. “The confirmation process has gotten so out of hand, that it takes an extraordinary person to be wiling to subject him or herself to this ‘feeding frenzy.’”
Judge Edgar read a quote by former Solicitor General of the United States Ted Olson to the Rotarians that he said summed up his point. Mr. Olson wrote, “We expect dignity, wisdom, decency, civility, integrity, and restraint from our judges. It is time to exercise those same characteristics in our dealing with and commentary on, those same judges—from their appointment and confirmation to their decision making once they take office.”
In closing, Judge Edgar said, “If we do this, we will have cooled the political fires, and we will have taken a substantial step towards preserving the Third Branch of government, which is vital to our nation.”