The usurpation of the Florida state Presidential Election process by five Republican-appointed Supreme Court judges in December 2000 - at least two of whom under the canons of judicial ethics should have recused themselves, reversing the decision - represents the recent high water mark of the politicized abuse of the nation by our “constitutional” judiciary. This fact was clear for all to see when the partisan high court majority dictated that although their ruling was based in law (it was not), it should never be used as a legal precedent in any future court case (and why not?). Hence many Americans see in the Bush v. Gore decision nothing less than a coup d’etat by one political party.
 

The Bush ruling destroyed any faith many people had in the judicial system as an arbiter of relative procedural fairness and justice in an otherwise overpoliticized system of government. The tearing-up of the Constitution by those five judges and their partisan political allies may in fact be the cause of the bloodletting that now passes for political discourse in this country. Without judges as impartial referees in the executive and legislative political processes, politics really has become all-out civil war, with no remedy in sight.
 

This is why the Monarchy Party of the United States, even before a monarchy itself, advocates the replacement of our current political partisan judiciary with one that is truly independent and depoliticized. The court system is the closest thing we currently have to a monarchy charged with upholding law and constitution in the face of partisan political executive and legislative officials who often enough attempt to violate both and place themselves above the law. Until December 2000 it was metaphorical to compare the Supreme Court to a collective monarchy. Now those five judges have with impunity arrogated to themselves the kind of unaccountable, unelected, absolute rule which Americans rightly or wrongly associate with medieval kings.
 

The current system where the President nominates and the Senate confirms or rejects would-be Federal Judges has clearly become an old-fashioned patronage mill. The authors of the Constitution in 1787 did not foresee the introduction of political parties into their ‘enlightened,’ aristocratic, idealized system. They envisioned a worthy President elected by elite Electors collaborating with the elite Senate appointed not by the masses but State legislatures, to name the best jurists in the land of whatever political persuasion to be guardians of justice and law and procedural fairness on the Federal Bench. But our current party system has its roots in the very contest over ratifying that 1787 Constitution: the conflict between “states’ rights” and “federal power” has been the key one, in various guises, throughout the history of our Republic. But if that were not bad enough, the two major political parties that arose in each era of United States history have in fact had mixed platforms, favoring “states’ rights” in matters where they controlled the States, and “federal power” in matters where they controlled Washington! Finally, since the Civil War the two major parties have been commonly associated with the upper and the lower classes of society, respectively, embedding in our politics a class-struggle where the founders hoped for a relatively classless, egalitarian society “of laws, not men.” Thus the seeds of Bush v. Gore were planted well over 200 years ago.
 

It is long past time for change. An independent judiciary is the foundation of the Anglo-American Legal System, admired and where possible imitated around the world.
 

We propose adding to the existing Presidential nomination and Senate confirmation of Federal Judges, a federal Judicial Appointments Commission. The JAC could vet candidates prior to Presidential nomination, recommending to the President only those who offer promise and evidence of even-handedness, non-partisanship, wisdom and insight into the law, a passion for true justice even against their own vested interests.
 

A Judicial Appointments Commission could be required by Constitutional Amendment, or simply established by Congressional legislation or even Executive Order. One would hope that to it would be appointed, for staggered terms of office, active and retired eminent jurists, statesmen/women, seasoned trial lawyers and prosecutors, leading lawmakers from the State and Federal levels, even former Presidents. It should probably have 20-30 members in order to bring to bear on the task a variety of perspectives such as just described. If possible, much of its work should be in the background, and not immediately available to the public or the media; after all, we still have Presidential discretion and Senate review where they can enter the process, and should. But if the President insists on nominating a candidate rejected by the JAC, that fact should be noted.
 

For its own credibility, the JAC should probably have the status of an independent federal commission, theoretically less under the Presidential thumb.
 

It is hoped that introducing this sort of peer review would help restore integrity to the nominating process, and faith in the federal court system.
 

Tiernan O Faolain, June 9, 2004