One of the celebrated principles upon which our nation is founded is the notion of checks and balances, as manifested, for example, in the separation of US governmental powers into the three distinct branches federal government.

Accepting Flaws in Our Nature

At the meta level, the core principle that was key is that “people will be people.” Although the founders understood the need for governments, they also distrusted governments—even the one they were themselves making.

Guided by this healthy distrust, they constructed a system that allowed us to elect ordinary human beings as Presidents. It wouldn’t be possible to have our country otherwise because if we were really electing Kings, we’d be putting too much power in one person. It would be impossible for an electorate to know what an unconstrained King might do. So when we place our trust in government, it’s not in a person but in a whole system of processes. We trust the person to do a job, but we trust the system to limit that person’s power.

This is what was so scary about Bush. It wasn’t just that he was bad. It was that he was dismantling the safeguards. That was really bad. The safeguards impeded him, and I think he honestly felt we were trusting him personally to do a certain thing that he was unable to do. I think he felt he’d been trusted to personally clear all obstacles. In fact, many of us were trusting him, or wishing we could trust him, to do what was legally allowed and no more. The rest, the part Bush could not change, was the paradigm we had all signed up for—democracy. It’s slow and inefficient, but it protects us from dictators.

I think Bush didn’t aspire to be a dictator and so he didn’t see the harm. He figured as long as his intentions were good, anything he did was good. It was as if good intent was a magic aura that could protect him from injuring others. Sadly, though, I think he was incompetent, and I think incompetence is sometimes as dangerous as bad intent. But either way, what protection we had from him was in the process due through our system’s “checks and balances.” As these fell away, Bush became more dangerous. And the danger will persist until Obama gets out the trowel and repairs the damage Bush has done to various Constitutional foundations.

We see the good side of process playing itself out now in the Blagojevich matter. Here’s a guy who seems pretty obviously corrupt, and yet our political system is somewhat resilient against that. The process of checks and balances caught the problem, and have been at work correcting it. Some actions taken by Blagojevich have managed to stand, such as his appointment of a successor, not because we necessarily trust his decision on its face, but because an independent process is in place to evaluate the choice in various ways—so we don’t have to do as might happen in some other countries and just exile or arrest or even assassinate anyone who has ever touched his discredited administration.

But then there is the Court.

In Denial about Human Nature

Discussion about the Supreme Court in recent years seems to have focused a lot on the issue of original intent. That troubles me, and on another day I might write about that in specific, but what troubles me even more is the notion that discussion of the Supreme Court seems to be trending toward the idea that we expect our judges not to behave like human beings.

As I’ve noted, we don’t ask the executive to be impartial, nor our congressional representatives. Rather, we have built structures that allow them be themselves. And yet, we appoint nine people for life and entrust our personal and collective future to these people we sometimes know so little about. That seems dangerous to me because there are, in effect, no checks and balances. Increasingly, too, we have found that what it takes to become a Justice is to have never made a public statement, as if this qualifies one for office.

Don’t get me wrong—I think impartiality is important in situations where there is a check on that. In the lower courts, we ask impartiality but not because we simply trust it will come. Lower court decisions can and do get reviewed higher up the ladder. But at the top comes the hard question: What are the checks and balances in the Court itself? In other words, who watches the watchers?

Justice Ginsberg

I mention this now because Justice Ginsberg is reportedly being treated for cancer. I wish her well, and I think it’s time she took time out to battle the disease and not worry about the Court. To be more plain—I think she should step down. As one of the liberals on the Court, she will never have a better chance, in that it will be years before there is another Democratic president in office. Either Obama will be successful and will be in office eight years, or he will be a failure and a Republican will be in office. That will again mean a minimum of 8 years before there will be another Democratic president. And that means she’ll be 92 when her next likely chance is to have a replacement. With cancer in play for the second time, her odds are not good, but they may improve if she can at least focus on fighting the disease and not on the stresses of the Court.

And having made the suggestion she step down, I want to add a recommendation about how to find a replacement for her. (President Obama, are you listening?)

All evidence is that Obama is someone who not only likes compromise but seeks it out. He seems to thrive on consensus and seems to want to show the world that people can get things done better together than separately. He’s already been accused of compromising too early, and while all the returns are not yet in on whether that’s so, it’s something to watch out for here. I think he’ll feel the temptation to seek compromise with Republicans about who to select. He should avoid this temptation.

The compromise to be had is in the Court, after a suitable replacement is found, not in the selection of who will be appointed to the Court. If Obama wants to impose compromise, he must do so by insisting that adequate representation of positions exist on the Court. Since the Court is already right-leaning, he cannot restore balance by first compromising on a suggested replacement for someone who is already known to be left-leaning. The result would be to move the court further to the right.

Institutionalized Conflict

I suggest that it would be well within the scope of President Obama’s style to bring the fact of political disagreement on the Court finally out into the open.

He should insist that, gradually over time as replacements are needed, the goal should be to have three conservatives, three moderates, and three liberals. Insist that their public statements and voting record back this up, and that this should be the topic of robust public debate during the confirmation process—verifying that this balance is achieved.

Replace Justice Ginsberg unabashedly one-for-one with a liberal, since clearly the Court is right-leaning at present and it’s essential that the nation see a balance in that critical function. In future replacements, if such are necessary, pledge to make choices that seek to overtly maintain a 3-3-3 balance, even if it means sometimes replacing conservatives with other conservatives (although presently I think there are more conservatives on the Court than the 3-3-3 model might suggest, and some minor leveling might be needed before this was 100% in play).

It might even be appropriate to insist that the Chief Justice must be from among the moderates, in order to promote bipartisan support for what should be a task of promoting consensus, not of abusing opportunity. Having the Chief be from the left or the right means potential radical swings when that person steps down and a President of the opposite party happens to be in power. The notion that the future of the country should hinge on such matters of sheer coincidence and timing is a bad one.

There would still be Justices that would drift in position over time, as has happened in the past. When this happened, it would be a legitimate topic of discussion during appointments whether existing Justices should be recategorized before appointing a replacement. But by focusing on actual voting records and offered statements, this would no longer be a matter of nudges and winks, nor would it be a matter of packing the Court.

Courting Stability

Note well—I’m not suggesting that we throw out the idea that Justices should attempt impartiality. I’m not suggesting that they feel obliged to represent a particular political fashion. They would still be installed for life and left to conscience. What I’m saying is that sometimes, inevitably, other factors will come into play. I’d rather see those things acknowledged where they are in play, and to know that if there’s a risk of political bias in one direction, there’s at least a hope of a bias in the other direction. It’s about achieving balance and about being intellectually honest about the nature of human beings. The rest of our government builds in that notion, why not the Supreme Court?

Once we admit that people have biases, and we begin to install people with known-to-be-differing biases, the checks and balances on the Court will become “the other Justices.” If we instead continue to pretend that a bunch of people that we have deliberately not asked about the issues, people over whom we have no remaining power because they are appointed for life, will somehow act magically as a check on unreasonable power within the Court itself, we’re kidding ourselves.

Under our present system, we live in a fairy tale land where we believe that the Justices are paragons of virtue somehow capable of avoiding life and its natural biases. With the change I propose, the Court would again be a matter of process. We could tolerate and even celebrate the fact of Justices being opinionated and outspoken philosophers rather than enduring the ridiculous lie that if they don’t speak out, they will somehow be immune to flamboyant opinion (whether to the Left or the Right).

Also, once we start allowing Justices to be human beings again, we’ll have a much bigger and better pool of people to choose from. I have to believe the best decisions will come from having Justices who have actually lived life, not from those who have somehow avoided it.

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