Federal judges should not be political, but the court packing undo that


This series on the Constitution recently focused on the Legislative and Executive branches of the federal government. Now we turn to the Judiciary.

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  • Paul G. Summers, lawyer, is a former appellate and senior judge; district attorney general; and the Attorney General of Tennessee.

Editor’s note: This is a regular feature on issues related to the Constitution and civics written by Paul G. Summersretired judge and state attorney general.

Our Constitution has guided us through victories, failures, wars, trials and impeachments. We continue our study with Article III in this latest column.

When I served as Tennessee’s attorney general, I had the opportunity and honor to argue on behalf of my state in the US Supreme Court in Washington, DC

For a trial lawyer, that’s equivalent to a baseball player’s pitching two innings in the World Series. I will always remember.

The Judicial Branch is the third, separate and equal branch of our United States Government. We have one Supreme Court, and such inferior courts “as the Congress may from time to time ordain and establish.”

All federal judges hold their offices for life, or “during good behavior,” as the Constitution in the third article cites. The compensation of federal judges “shall not be diminished” while they continue in office.

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What makes the judicial branch different

The framers were clairvoyant. The Constitution is the supreme law of our land. Our forefathers created three equal branches – two were completely political, the legislative and executive branches. They make their decisions based on politics, policies, polls and ideology. Politicians rise and fall at the ballot box. They come, and they go.

The third federal branch, the judiciary, is not political. Judges make their decisions based on the law and the Constitution, not on emotion, popular sentiment, or culture. Once a judge is nominated by the president and confirmed by the Senate, he or she has a lifetime appointment.

They do not run for office every two, four or six years; they follow the Constitution and laws created thereby. The Supreme Court is “the court of last resort”; the decision by the Court is final and subject to no appeal.

The Supreme Court votes, and the majority prevails. After a decision has been made, a majority of the Court may realize that they made a mistake; and the majority reverses its holding years later. Judges are human; and they have the independent ability, although rarely, to admit error.

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“Court packing” would come with political consequences

Judges are independent; they follow laws and the Constitution. They interpret laws; they do not make or execute them. Judges follow the Rule of Law – that all men and women are created equal and endowed with the unalienable rights of life, liberty, and the pursuit of happiness. Judges, and certainly the Supreme Court Justices, must protect the checks and balances of abuse of power by the other two branches of government.

Our Supreme Court consists of nine Justices. It’s been nine since 1869. A congressional act can change that number. To change the number and fill vacancies with politicians is called “court packing.”

Such political shenanigans would eventually destroy the crown jewel of an independent judiciary that has protected us since 1789. One party does it; six years later the other party “packs the court” with political ideologues.

We do not need a Supreme Court with two dozen justices. An opponent of court packing, the late Justice Ruth Ginsburg opined: “Nine seems to be a good number, and it’s been that way for a long time.”

Paul G. Summers, lawyer, is a former appellate and senior judge; district attorney general; and the attorney general of Tennessee. Raised in Fayette County, he resides in Holladay and Nashville.

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