Supreme Court Justices are NOT appointed by Congress.
Maybe we should take this into Great Debates, but, yeah, the abuse of the Commerce Clause concerns me greatly. I can’t grow wheat for my own animals because my consumption of wheat is the result of interstate commerce? In this frame, literally (in the true, literal sense of the word “literal”) is interstate commerce. If I spit by bubble gum onto the ground, then a city employee, which city receives government funding for subsidized housing, who cleans up my bubble gum, makes me culpable to the federal government. Okay, silly example, but this is severe overreach.
When it comes to states’ rights, I’m not pragmatic; I’m idealistic. The economics mean nothing; it’s survival of the fittest (which, ironically, is an economic question, but I mean this in the pure economic sense, rather than the sense of “what is to be gained”).
If a state fucks up, the federal government shouldn’t intervene. And this goes for states like Florida and Louisiana that have hurricanes. It’s your state – state rights – prepare for natural disasters and don’t expect Alaska to bail you out.
What’s so unfair or unjust about this?
Thank you for your cite. Unfortunately, the article is one-sided because things are presented selectively and organized in such manner that readers should not learn information but assimilate a point of view.
It reads: “It follows a Thursday vote where lawmakers in the lower house of parliament passed a draft bill that would dismiss all member’s of the country’s Supreme Court and let the president— on the request of the justice minister— make new appointments and influence their work.” I wonder if even this scanty information is accurate because other sources mention the PiS’s plans limit the age Supreme Court justices can serve, which would lead to the resignation of about 40% of the current Constitutional Tribunal members. It is obviously a political move but reforms always occur because decision-makers have their own angle, not necessarily or solely because they want to make the world a better place.
I live in Bucharest, Romania, and I think the Romanian system is a superior one: The Constitutional Court consists of nine justices appointed for a nine-year mandate, which cannot be either prolonged or renewed. In principle, the President, the Senate and the Parliament’s Lower House each appoint a third of the Constitutional Court (i.e. three justices each). A third of its composition is renewed every three years, when the President, the Senate and the Parliament’s Lower House each appoint one justice. This system of cyclic replacement has been working relatively well since the Constitutional Court was first set up, when the first justices were supposed to serve for different periods (3, 6, or 9 years) to allow the court’s periodic renewal.
The voice that “informs” the reader on Poland’s political situation is biased: “It is part of a wider campaign to dismantle the country’s democratic checks and balances on the government by the populist Law and Justice party (PiS), co-founded and chaired by former Prime Minister Jarosław Kaczyński. Since winning a majority in 2015, PiS deputies have effectively turned the country’s state media into a propaganda arm, purged the army’s leadership, placed loyalists in the civil service and weakened the Constitutional Tribunal which rules on whether legislation violates Poland’s constitution.” The author fails to show that PiS (i.e. Law and Justice) has won the election with a reformist agenda. They promised to reform the judiciary and people voted for them in the hope the judiciary would be reformed. In this respect, the current reform is an expression of Polish democracy. The author blames PiS for turning the country’s state media into a propaganda arm, but the article itself is sheer propaganda as well because it labels the reform as a non-democratic process instead of giving the facts, or allowing the reader to learn both sides of the story equally and make his own decision.
In my opinion, they are only trying to make members of the judiciary accountable. One should keep in mind that these members (judges included) are all appointed, not elected as it happens in the USA and their accountability should be ensured by allowing either the law minister or Parliament (or both) to check their performance - this system is already implemented in France, for instance, and works just fine. The separation of powers involves not only the division of responsibilities but also checks exercised by other institutions so that no branch should concentrate too much power.
Indeed, I was not rigorous enough. Maybe this is better: The process includes the appointment of the highest members of the judiciary by the highest member of the executive with the participation of the highest members of the legislative. Since both the President and Senate are political institutions, the process of appointing the Supreme Court justices is a political one.
Well, I’m not an American citizen so please correct me if I’m wrong, but when Washington, D.C. leaders decided that the Confederate States would not be allowed to leave the Union, they both gave the Federal government the right to make decisions on the existential condition of every state and made it liable when the existential condition of every state was under threat.
Accountable to whom, and for what? Judges should be accountable for and to the law alone. True, elected politicians write the law, but from then on, interpretation and application is for the judges: if the political process throws up concern that the interpretation and application is not going as expected, then the law itself gets re-written, rather than the selection and appointment of judges. Unless, of course, there is evidence, to be tested cases by case in impartial disciplinary processes, that individual judges are in some way falling down on the job (which does not equal making judgements politicians disagree with).
“Reform” is a classic weasel word for all sorts of shenanigans by the powerful, and when it amounts to ministers taking direct control of both media and the administration of justice, rather than allowing intermediate professional bodies to do the job, then there is cause to worry.
No. All public servants should account for the way they carry out their activity to the public. In the years of transition from communist to capitalist states, countries in the Eastern block saw manifold acts of corruption often performed through the instrumentality of certain prosecutors and/or judges. Most of the times these prosecutors and/or judges have remained intangible.
Since I am not familiar with the specifics of the Polish political, social and economic life, I will give you an example of a judicial reform from my country, Romania: “President Traian Basescu said the Romanian justice system has become increasingly efficient in the fight against graft, once the judicial reform has begun and he pointed out nobody feels sheltered, be they a mayor, a minister or a lawmaker from the ruling parties or from the opposition.” This former president of Romania implemented a judicial reform that was heavily supported by the USA and the West in general. Nowadays Basescu is regarded as the most corrupt Romanian president in the modern era. Of course for him reform was a weasel word for all sorts of shenanigans. The abuses caused by the reform enforced by this president caused Romania to pay huge compensations (worth millions of euro every year) as a result of law suits Romania lost in the European Court of Human Rights. Most of the Romanian public is dissatisfied by the fact that prosecutors and judges are still virtually unaccountable for any of the problems with the judicial system. To get a clear picture, the discussion should get longer and more technical, and I think we should focus on Poland.
Poland, where people complained it took years and years to prosecute and try important cases and government lawyers and judges formed a caste that never accounted for their lack of action. The problem with government lawyers is that if they do not do their job properly and fail to observe the law, they will not start prosecuting themselves, will they? Thus, special control institutions or procedures must be implemented to allow for their control as well. The same applies to judges, where things are even more delicate because their accountability should not be interfered with by politicians.
But nothing should prevent the electorate from demanding public servants to be efficient and dedicated.
The constitutions of the former Soviet states were written quite recently and these nations are still struggling to put in place checks and balances that have been accumulated in other nations with a much longer democratic heritage.
When the EU expanded eastward it was anticipated that these countries might face some difficulties adapting from the authoritarian political systems that prevailed under the Soviet Union. Politicians who spent their formative years under some communist strongman backed by Soviet militrary power don’t have a democratic tradition, nor a body of law with which to build a system of national government. All this had to be done from scratch and most were written in the 1990s. Poland was better placed than most, having had constitutional laws developed under previous republics.
The EU recognises this and has a set of checks and sanctions that it can use to decide whether an EU member is consistent with the common values shared by treaty members with respect to democracy, the rule of law and human rights. All of this has never really been tested before, it is new territory for the EU. On the Polish side, nationalist populist politicans can make much of the rights of the Poles to make their own decisions about their constitution without interference from outside. Countries like Germany have a great fear of nationalism, they know where it leads, and they worry about the constitution being proposed in Poland and Hungary.
While these are sovereign nations, the EU can exercise sanctions. They can vote to cut the voting rights of Poland within the EU. The can also wield economic power. With EU membership comes access to EU development funds for roads, rail and all kinds of other fundamental infrastructure. Most of the newer EU members recieve long term and consistent funding for the improvement of their countries. Romania and Bulgaria, two of the most recent members joining in 2007, had warnings about political corruption.
The EU is primary an economic treaty organsation and the benefits of membership are considerable to less developed states. The free mobility of labour provisions mean that their nationals can live and work anywhere across the 28 states. This has some useful effects: tt gives a generation of workers experience of another political system, culture and economy and remittances provide a very direct social benefit. It also acts as a safety valve, reducing unemployment and the potential for political unrest due to frustrated ambition of those not well connected into corrupt networks.
All these are important factors, even the most rabid nationalist in any of these countries cannot ignore the benefits that accrue from EU membership. It is easy to compare their situation with neighbouring countries outside the EU who are much poorer. Poland particularly has done very well out of the EU, its economy has had substantial investement and they managed to avoid the 2008 economic crisis. Its economy has been growing consistently for a couple of decades now. It also plays an active part in EU institutions.
All this tempers the debate with EU over constitutional concerns, these countries can make their own arguments and be heard and find support from other members. Poland found support in the UK against the creeping Federalist agenda being promoted in the EU. Creeping Federalism or the creeping ‘Putinisation’ of the democratic constitutions? These are the dramatic extremes.
I guess the US has had all these arguments in the past, but then the US was left to its own devices to develop its political system. It does not have the looming figure of Putins Russia lurking over its eastern border with its own ideas about the shape of Europe and promoting its version of democracy in neighbouring states. The wider geopolitical picture overshadows these constitutional arguments.
An interesting discussion of Polish current affairs - thanks!
I am an American and don’t quite know who you mean by “they both” in the sentence above. In a nutshell, President Lincoln decided that his oath to the Constitution meant that he had to preserve the Union, by military force if necessary, in response to the attempts of some states to leave the Union. There were many who disagreed with him, even in the North, but he was the chief executive and it was the policy he pursued for four years, ultimately successfully. The legacy of the Civil War is with us still, including ongoing disagreements as to the proper balance between Federal authority and states’ rights.