Author:  R. Alan Harrop, Ph.D.  

The traditional view of a judge is someone who puts aside personal prejudice and opinion, and rules on cases based on facts and a commitment to the meaning of written law and the constitution.  It is increasingly clear that judges in this country can no longer (if ever) be relied upon to follow this traditional ideal.  Not only do lawyers “judge shop,” meaning that they seek to bring cases before judges who they can rely on to rule in a certain direction, but as we are seeing, since President Trump was inaugurated, federal judges are blocking the president from carrying out the legitimate wishes of the people who overwhelmingly voted for him and his agenda.  This cannot be allowed to continue and represents a serious threat to our country.

One of the main problems is the ability of minor federal judges in local districts to make rulings that apply to the entire country.  The founding fathers established three branches of government:  the legislative, executive, and judicial.   They also firmly believed that the source of power in America is the people, expressed through the voting process.  In many ways, the three branches are considered co-equal.  However, the notion of lifetime appoints that apply only to the federal judiciary insulates judges from the power of the people.  Once appointed, they are essentially immune to rebuke or removal.  Let’s apply some common sense to what has been happening.  The president of the United States is elected by the people and has broad authority to manage and control all federal agencies since he is the head of the Executive Branch.  When, as in Trump’s case, he issues an executive order such as removing illegal criminal aliens, and a single judge in a single district overrides his order, I consider that an unacceptable overreach of the Judiciary Branch of government.  It would be like some low-level employee overriding the CEO of a major corporation.  Now, if the U.S. Supreme Court, which is the highest-level authority of the Judiciary Branch, overruled the highest authority of the Executive Branch (i.e. the President), that would make more sense.  However, allowing a minor appointed federal judge, who may have been a judge for just a few weeks, to control the actions of a duly elected president is unacceptable, especially since that judge is not elected or answerable to the people.  Solution:  only the Supreme Court as the highest authority in the Judicial Branch should be allowed to overrule the president who is the highest authority in the Executive Branch.

Lifetime appointments are another problem.  As we have seen, certain judges appointed to the Supreme Court, once on the bench, begin making rulings inconsistent with the principles and expectations of the president who appointed them.  For instance, judges that are expected to make decisions by closely following the constitution who instead show a disregard for the constitution as written in their rulings should be capable of being replaced by the president who appointed them.  Now this may only be feasible for the duration of the appointing president’s time in office, but would provide some degree of control which is now totally lacking due to irreversible lifetime appointments.

Another way of providing some control over the Judiciary would be through legislative action.  Right now, in a close Supreme Court decision, the vote of one judge can exert power over the entire country as shown in many 5-4 decisions.  This is not consistent with the power of government residing with the people, especially since the judges have lifetime appointments.  This is government by oligarchs.  A solution that would return the power to the people would be a process that would allow Congress to override a Supreme Court decision if they were able to obtain a two-thirds, or even a three-fourths vote in Congress.

Now, I will admit that these are radical ideas.  I can hear the howling from the judges already.  However, allowing these federal judges to usurp the authority of the president must be stopped.  Even when these lower-level judges are overruled, considerable damage can be done by delaying the implementation of the president’s actions.