By: James G. Apple, Editor-in-Chief, International
Judicial Monitor
The United States of America was
founded largely through the activities and influence of lawyers. The
Declaration of Independence was written by a lawyer (Thomas Jefferson). The
Constitution of the United States is largely worded the way it is by the
leadership of a lawyer (James Madison). The adoption of the Constitution by the
thirteen colonies that made up the membership of the United States in the last
part of the 18th Century was obtained by the efforts of three
lawyers (Alexander Hamilton, James Madison and John Jay). Eight of the first
ten Presidents of the United States were lawyers. Of a total of 44 U.S.
Presidents, 24 have been lawyers.
These statistics are cited
only to demonstrate the great influence that law and lawyers have had on the
development of the United States. The judicial branch has been especially
affected by the activities of so many lawyers, because the U.S. judiciary,
state and federal, from the beginning has been made up exclusively
of lawyers The U.S. is a legal nation. Its heritage and culture to a great
extent rest on the pillars of law and lawyers and judges and courts.
Alexis De Tocqueville, in his
lengthy commentary about the U.S., Democracy in America, published in
the middle of the 19th Century, observed about this legal
phenomenon:
The
influence of legal habits extends beyond the precise limits I have pointed out.
Scarcely any political question arises in the United States that is not
resolved, sooner or later, into a judicial question. Hence all parties are
obliged to borrow, in their daily controversies, the ideas, and even the
language, peculiar to judicial proceedings. As most public men are or have been
legal practitioners, they introduce the customs and technicalities of their
profession into the management of public affairs. The jury extends this habit
to all classes. The language of the law thus becomes, in some measure, a vulgar
tongue; the spirit of the law, which is produced in the schools and courts of
justice, gradually penetrated beyond their walls into the bosom of society,
where it descends to the lowest classes, so that at last the whole people
contract the habits and the tastes of the judicial magistrate.
What is the harm to the
judiciary that is stated in the title of this essay?
First and most prominently, a
political situation has developed that is affecting adversely the Supreme Court
of the United States. A crisis was created with the death of one of the Supreme
Court justices, Antonin Scalia, in February, 2016. The process of selecting a
person to fill the vacancy created by the death of Justice Scalia began with
the nomination of a successor by the President of the United States. This
action is supposed to be followed by Senate consideration of the nominee, and
vote of approval or disapproval through first, hearings before the Senate
Judiciary Committee, and then, assuming approval by a majority of that
Committee, a vote of approval or disapproval by the entire Senate. This process
is essentially a constitutional mandate.
That process is now being
ignored by the Senate. The President has nominated a highly qualified candidate
for the vacancy on the Supreme Court. However because of the efforts of a small
coterie of Senators who want