Tag Archives: Judges

We have TOO many federal judges!

I wish you to consider whether it would not be useful, by a circular to the clerks of the federal courts, to call for a docket of the cases decided in the last twelvemonth, say from July 1. 1801. to July 1. 1802. to be laid before Congress. it will be satisfactory to them, & to all men to see how little is to be done by the federal judiciary, and will effectually crush the clamour still raised on the suppression of the new judges. I think it a proper document to be furnished annually, as it may enable us to make further simplifications of that corps.
To James Madison, August 30, 1802

Patrick Lee’s Explanation
Smart leaders seek documentation for their choices.
Before President Adams left office in 1801, the Federalist Congress greatly increased the number of judges in federal courts. This had the desired effect of saddling the incoming Jefferson administration with a politically hostile judiciary. The new President took whatever steps he could to reverse or curtail those appointments. His actions infuriated the Federalists.

In this letter to his Secretary of State, Jefferson asked his opinion about requiring court clerks to document how many cases each judge had decided in the previous year. He would present that report to the Congress, proving how little work the judges actually did. That should “crush the clamor” that still surrounded his efforts to reduce their number. In addition, if that information was tracked each year, it would provide the basis for reducing the federal judiciary even more.

Madison responded four days later, suggesting this documentation might better be required by the Congress. The Executive Branch had no funding to accomplish it. It also had no authority to require the court clerks to do it, and some might simply refuse. Nevertheless, he would proceed however the President wished.

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Are judges above the law?

… but the third [branch of the government, the federal judiciary], unfortunately & unwisely, made independant not only of the nation but even of their own conduct, have hitherto bid defiance to the public will, and erected themselves into a political body with the assumed functions of correcting what they deem the errors of the nation.
To Gideon Granger, October 22, 1810

Patrick Lee’s Explanation
ALL leaders should be accountable to their constituents.
Preceding this excerpt, Jefferson expressed his pleasure that the legislative and executive branches remained republican (small r), giving themselves to the “great reformation in our government” that occurred with the election of 1800. The courts were another matter.

Federal judges were appointed for life. Some of the still-serving justices were Federalists, political opponents appointed by President Adams before he left office in 1801. The means of impeaching justices for professional or personal misconduct were unenforceable. That left the judicial branch unanswerable to anyone but themselves. This allowed them to assume a role Jefferson never thought they were meant to have, passing judgment on the actions of the other two branches of the national government.

(Any number of times, I’ve read both Jefferson’s thoughts and others’ analysis of those thoughts regarding the proper role of the judiciary. I still can’t make sense of them.)

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Is being honest all that is needed in a judge?

It is not enough that honest men are appointed judges. All know the influence of [special] interest [s] on the mind of man, and how unconsciously his judgment is warped by that influence. To this bias add that of the esprit de corps, of their peculiar maxim and creed that “it is the office of a good judge to enlarge his jurisdiction,” and the absence of responsibility, and how can we expect impartial decision between the General government, of which they are themselves so eminent a part, and an individual state from which they have nothing to hope or fear.
Autobiography, 1821

Patrick Lee’s Explanation
Even honest leaders must be held accountable.
Jefferson continued his thoughts on federal judges who held a lifetime appointment:
1. Even honest judges could be led astray, without knowing it, as special interests influenced them.
2. By their very nature of setting precedent in their rulings, judges sought to expand their authority. Since they were federal judges, any expansion would be of national power.
3. If federal judges were not answerable to anyone, how can they rightly judge issues between the national government, which gave them the office of judge, and a state, which gave them nothing?

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Are judges answerable to anyone?

But there was another amendment of which none of us thought at the time and in the omission of which lurks the germ that is to destroy … our judges are effectually independent of the nation. But this ought not to be … I deem it indispensable to the continuance of this government that they should be submitted to some practical & impartial controul: and that this, to be imparted, must be compounded of a mixture of state and federal authorities …
Autobiography, 1821

Patrick Lee’s Explanation
All leaders should be held accountable by others.
The draft of the Constitution provided that federal judges would serve “during good behavior.” Without a working definition of good behavior and an effective way to enforce it, judges could serve for life. Jefferson opposed anyone holding any office for life, but this escaped him at the time, as it did others. This Autobiography was written 30+ years later. In hindsight only did he see the error, judges who could act with impunity.
He wrote of English judges who answered only to the King. That was too much control from the executive. Removal by a simple majority of the legislative bodies put too much control in lawmakers’ hands. Yet, when judges exceeded their authority, were abusive, became ill or drunkards, there was no reasonable way to remove them.
Jefferson didn’t propose a solution beyond suggesting that the standards for removing a judge should be established by “a mixture of state and federal authorities.” That implies a broad-based consensus, where strong state and national support favored such drastic action.
Jefferson saw a practical danger in a completely independent judiciary, which we’ll pursue in subsequent posts.

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How do you keep an honest man honest?

It is not enough that honest men are appointed Judges. All know the influence of interest on the mind of man, and how unconsciously his judgment is warped by that influence. To this bias, we add that of esprit de corps, of their peculiar maxim and creed that “it is the office of a good Judge to enlarge his jurisdiction” … I repeat that I do not charge the Judges with wilful and ill-intentioned error, but honest error must be arrested, where its toleration leads to public ruin … so judges should be removed from their bench, whose erroneous biases are leading us to dissolution.
Autobiography, 1821
Taken from Koch & Peden’s Life & Selected Writings of Thomas Jefferson, P. 78-79

Patrick Lee’s Explanation
Realistic leaders know that even honest people must be held accountable.
Jefferson had been concerned for years that federal judges had no check on their authority. They were appointed for life. Even honest men could be drawn astray. Unlike members of Congress and the President who were accountable to the voters, judges had no such limitation on their authority. They could be impeached, but several instances had convinced Jefferson that impeachment provisions were toothless.

In order to keep an honest man honest (a judge or any other person), he must be held accountable in a realistic and practical manner. While affirming the judiciary and its practitioners in general, he wanted a way to remove judges who got carried away with personal or political interests that threatened the republic.

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