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Show Hingkley Journal of Politics 2006 defends judicial independence as a key contributor to collective justice in America. The New York State Bar said of the necessity for judicial independence: Our bar association feels that fostering an independent judiciary is the best way to ensure fundamental fairness in our society, especially during a time of crisis. In a democracy such as ours, it is the job of judges to hold the government accountable for its actions and uphold the rule of law, even if the law may seem inconvenient at the time (Gomez, 2004, p. 11). Particularly in the high tide of partisanship in the country, with consecutive presidential elections being decided by less than one percent of one state's electorate, the majority party i^ both houses of Congress holding less than 56% of the total Seats, highly divided public opinion regarding the role of the U.S. military in world affairs, and a lack of unified direction °ver natural disaster response, it is crucial that the courts reniain free from the suspicion of bias that shadows each of these phenomena. A judge that is heavily dependent on a Particular ideology when issuing decisions is much less likely to give the "equal justice under the law" that the court system Promises than is a judge who is not as tied to one particular Geology. Judges must be selected who represent an objective standard of law rather than a particular ideology, personal °pinion, or an adherence to changing winds of public opin-l°n. New York Bar President Thomas Levin articulates this idea: Like the umpire at the ball game, whose job is to "call them as you see them," judges must be free to study and analyze the facts and law applicable in each case. If judges are to be selected only if they can be counted upon to decide cases a certain way, or in accord with the popular view, regardless of the facts, we sacrifice an essential part of our unique system (Levin, 2004, p. 3). Appointments ^ on the same metaphor, if judges are in fact umpires" officiating a political game, it is crucial that the Process by which these umpires are selected is sound. Figure * (Epstein and Segal, 2005, p. 23) displays the process of a Judicial vacancy being filled. This process applies to all three levels of the judiciary, but the intensity of the process decreases as the nominee's scope °f influence lessens. A Supreme Court nomination will be accompanied by extensive media coverage, high level ofpub-*ic interest, aggressive interest group jockeying, and thorough ^enate hearings. Each of these also occurs at the circuit and district court levels, but will occur with less and less intensity. JlJt>iciAL Empowerment ^'exis De Tocqueville recommended "judicial power" as one °f the "democratic procedures for securing liberty against despotism" (De Tocqueville, 1831, 1:1:4). The judiciary's func-ttorting as a body of independent power was not defined with §reat detail in the Constitution, and so has developed much Retirement, death or new seat Figure 1. Vacancy: President's Advisors: Compile a list of candidates FBI Background Checks: I President: Announces nominee; submits name to the U.S. Senate Senate Judiciary Committee: Holds hearings, debates, votes to recommend or reject3 Media: Publicizes proceedings Public: May make its views known ABA: Rates Candidate4 - Interest groups: Participate in proceedings I Senate: Votes for confirmation or rejection of this power through judicial opinions in high profile and closely watched cases. Some early examples of such cases include: • Marburg v. Madison (1803) This case solidified the process of judicial review, empowering courts to interpret the constitutionality of laws and potentially strike them down. • McCulloch v. Maryland (1819) In the first major decision involving state and federal rights, the Court, in a unanimous decision, declared that the power to tax involves the power to destroy and that the federal government's national bank was immune to state taxation. In this case, the Court set clear precedent for future issues regarding state and federal boundaries. • Gibbons v. Ogden (1824) Again establishing precedent regarding state and federal jurisdiction, the Court used this case to put forth the position that Congress can legislate and regulate all matters of interstate commerce as long as there is some commercial connection with another state. De Tocqueville noted the judiciary's continued maturation, commenting in 1831, "a more immense judicial power has never been constituted in any people" (De Tocqueville, 1831, 1:1.5). More recent significant Supreme Court cases including Dred Scott v. Sandford (1857), Lochner v. New York (1905), Brown v. Board of Education (1954), and Roe v. Wade (1973), increased the judiciary's stature in American government. As the judiciary has molded itself into a significant power player, special interests and partisan politicking have closely followed it. 3Many of the influences affecting the confirmation process (i.e., media publication, interest group participation) occurs before and during Senate hearings as well as after. 4Until 2001, the American Bar Association released its rating on all potential candidates before the president announced his nominee. The George W. Bush administration preferred the ABA to only rate a nominated candidate. Future administrations may choose to again have all potential candidates rated prior to selecting one. 61 |