Four sets of inter-connected principles govern our country,
- Federalist principles
- The notion that people are stronger when they pool resources and work together across geographical boundaries and subboundaries.
- Commonwealth Principles
- The notion that some things are common to everyone and should not be individually monopolized:
- Republican Principles
- Separation of Powers
- Representation by subdivision and population
- Res Publica -- our thing. John Locke translated the term to mean commonwealth.
- Democratic Principles
- The notion that “we the people” should participate in and have a say in Government.
- The Commons
- Common Law
- Common Good
- etc...
“Judges...shall hold their Offices during good Behavior.”
The existence of an independent Judiciary is derived from Republican Principles. It is based on hard won observation that judges should be independent of executive power and hold their offices "during good behavior." It is up to both the legislature and the Judiciary, but first in the court of the legislature, to define what "during good behavior" means. The principle of separation of powers implies that Judges can only judge what good behavior is, if that is well defined by the legislature based on long standing principles.
Defining “During Good Behavior”
Congress has a duty to legislate the definition and parameters of what “during good behavior” means. They have done this somewhat. There is a code of Judicial ethics that applies to all the Federal Courts except the Supreme Court. That is odd. For the most part Judges hold their offices until resigning due to some scandal or being arrested. Congress can exercise judicial review over them. But often that goes awry as it tends to be policiticized in the process and to have nothing to do with their fitness as judges. This results in impeachments being rare and usually only following outrageous conduct. But the "on good behavior" implies that it would be constitutional for mechanisms to be created for the Judiciary to police itself. But first we must consider what the judiciary is, or should be.
The Judiciary is the Justice System
The founders argued about the formation of the Justice department. This is because, technically almost everyone working their is part of the court system. Judge, Jury and Executioners, all are part of the Judiciary, and thus are, or should be, officers of the courts, subject to strict standards of behavior higher than those of civilians. So technically should legislators be when passing laws that will impact the courts. The founders wanted the National Attorney General to be an officer of the court and to be independent of partisan politics or self interested actions. They left him as a "subordinate" officer of the president in the hopes that the President would have the judgement and virtues necessary to keep his job scoped (focused) on enforcing the laws of the country. The courts have considerable civil and criminal powers as a result. When those are bent to self interested purposes they become subversive of good government. So the issue of how to police the police remains fraught with peril and unresolved, as Executive, legislature and judiciary, are all too self interested to police themselves. I propose an administrative mechanism to correct this problem.
Administrative Law and Enforcement
Thanks to Trump we've seen the potential for abuse embodied in runaway executive power. The flaws there, were there all along, but it took a wannabe dictator to see how easy it was to subvert them.
Officers of the court have a duty to be filial to letter and spirit of law
No system is sailor proof. That is why administrative actions need to operate as if they were trial courts. Further, they need to operate as Jury Trial courts, if necessary, in order to be fully fair to both the people as a whole and those being scrutinized. We need every officer to be subject to periodic scrutiny. The courts and their officers are “officers of the people” and therefore should be accountable.
Entry Points
The law has to specify entry points and affirm that people have a right to substantial due process. Otherwise substandard due process becomes a checkoff point for the efficient tyranny of runaway legal process.
Informal Adjudication
There are informal judicial proceedings that may involve people otherwise not in the court system. Anyone who can, can and usually does moderate simple disputes. If substantive agreement between the parties can be achieved, a simple contractural agreement should be able to memorialize the informal adjudication. When judges are engaged in informal adjudication, the same rules should apply as when an Umpire calls strikes in a baseball game. Except, if agreement fails, then that becomes the entry point for formal judicial process. Judges should be encouraged to seek agreements in private disputes. Those agreements should be binding unless deception, force, threats or bribes were used to achieve them. They can be private unless there is a public interest in the outcome.
Formal Adjudication Entry Points
When agreement is not achieved or affirmed in writing, deception, force, threats or bribes occured, or there is significant public interest in an adversarial procedure occuring, then that is the entry point to formal adjudication. The first stage can be an informal Judged trial. If the parties agree to be bound by the judges decision, then that should be respected. If not a person should have a right to a jury trial. This goes for all judicial type proceedings. Informal or formal, all such proceedings should have at least two counsels available. One for each defendent, one for each person pursuing the matter. This should be true for administrative judging as well as traditional courts. Anyone with judicial powers, must be a judge and member of the judiciary, in order to hear any kind of formal case. And anytime a defendent or subject requests a jury the trial should use that jury.
Administrative Hearings
Administrative hearings are sometimes necessary to establish regulations, review petitions for citizenship, etc.... I believe they further should be used to scrutinize candidates for office and periodically review office holders. Such bodies should have the power to inquire, subpoena, do accounting reviews and scrutinize past performance to determine candidate or office holder fitness as prospective officers to receive a job or continue in office.
Informal and Formal Scrutiny
This is a judicial function and an administrative function. It therefore should be performed within the judiciary, as a regular function with an informal process followed by formal process if contested. It is not about criminal behavior or even civil torts, but about whether someone is behaving with integrity and is fit for their job. Therefore while it should use juries to weigh fitness for office, matters of crime and damages should be referred to different bodies and different judges. In the case of elected officers, the information should be published to the voters because the voters are the ultimate judges, through recall petitions or elections.
Oversight
In the case of unelected officers, hiring or firing decisions should be in the hands of the chain of command and the information also published. In any case such courts should have no power beyond subpoena and order enforcement (contempt of court or seizure of evidence). It would have the power to forward evidence of wrongdoing to an ordinary court. No judge should be involved in his or her own case or of someone related to them or in their own chain of command. Admin courts would receive IGs and be established in regulatory and oversight agencies. The body of rules in the law and not subject to over-ride.
Voir Dire
The judges would be subject to the same scrutiny. Juries would come from the jury pool and be selected by voir dire. The investigators would be selected from local journalists, and Government investigators, in a similar manner.
Codify regulations
Congress must establish a strict definition of what "during good behavior" means and let administrative courts enforce it. If they want to be really effective, they'd include themselves in the scrutiny laws.
I'm not a lawyer, so the details behind this probably need some work.
Expand the court
The Supreme court does not have to be 9 members. It could be 12, 13, or 15. But more importantly all judges, including the ones on SCOTUS should be subject to the same rules that define "during good behavior" for the entire judiciary and judicial impeachment [firing] should be the remedy for violating those rules. That should not take an amendment to COTUS. Moreover, one of those rules should be no judge may be a prosecutor or judge in his own case.
The beauty here, is that were the courts to rule they don't have the power to police themselves, they still would [and should] have the power to report an impeachment recommendation to congress. The house could pass the bill to the Senate & the case record would already be available.
Given the amount of corruption revealed since Citizens United, the Congress might not even need to expand the numbers of judges, just remove badly behaving ones.
