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Constitution

Do We Need Rubber Rooms for Federal Judges? Two Plans To Reduce The Long Tailed Impact of Trump Judicial Appointees

Permanent URL: https://www.cavebear.com/cavebear-blog/rubber-rooms/
Revised: September 22, 2020

Ruth Bader Ginsburg died last Friday.

Already, many are talking about adding new justices to the Supreme Court to overcome the political imbalance that is likely to occur when a new Justice is confirmed to fill her now vacant seat.

However, this article is not about the Supreme Court or the addition of new Justices.

Instead, I want to address two subordinate Federal courts — our system of District and Circuit (appellate) courts.

The judges on these courts are generally referred to as “Article III” judges to distinguish them from judges on Federal regulatory and administrative courts. Article III judges “hold their offices during good behaviour”. This effectively means they have lifetime appointments.

The membership of the Supreme Court gets most of our attention. Yet, during the 2017-2021 presidential term those lower courts have been packed with more than 200 questionable or highly biased appointees.

The District Courts handle all Federal trials. The Circuit courts handle all appeals aside from the tiny portion that is taken up by the Supreme Court.

The impact of the last four years of Federal judicial appointments is significant, amounting to 25% of all Article III judges.

And because those judges have lifetime appointments that impact could continue for years. Generations of new and existing voters could find their majority views and votes blocked and nullified by judicial decisions made by those judges.

How do we deal with this?

While the problem might seem hopeless, there are things we can do.

Our New Reconstruction: Constraining The Growth of Presidential Powers

Permanent URL: https://www.cavebear.com/cavebear-blog/executive-amendment/
Revised: September 23, 2020

The Trump presidency has been a Constitutional disaster for the United States. Presidential power, which already had been growing at an alarming rate in prior administrations, has exploded to dictatorial levels under Trump.

It is not reasonable to expect that future presidents will easily reject these powers. Even if not used by the next or subsequent presidents these powers will retain their potency and be available to be resurrected and used.

Many of these new claims to executive power exclude, in practical reality if not in academic theory, the authority of Congress, the Courts, or the people of the United States to step in to impose corrections or limitations.

Our system of Separation of Powers has been weakened. Madison’s notion, as expressed in the Federalist Papers (Number 51), that “Ambition must be made to counteract ambition”, is in need of life support.

Because the basic allocation of authority in the United States comes from our Constitution it is beyond the power of Congress, the courts, or the States either individually or in concert, to do more than apply cosmetic remedies.

As a consequence we are faced with an exigent need to update our US Constitution with one or more amendments that define the limits of executive authority and create and enhance the balancing powers vested in the other branches of government and the citizenry.

In the years just after the Civil War, Congress and the States created three new Constitutional amendments, along with a body of supporting legislation. These Amendments and laws reshaped our country in ways that remain important, more than 150 years later.

It is time to do so again.

Our nation is in need of New Reconstruction.

Redressing the Distortion of Elections and Political Speech by Corporations

(This was originally posted on Oct 14, 2011.)

Proposed Amendment to the United States Constitution To Redress the Increasing Distortion of Elections and Political Speech by Corporations and Other Aggregate Forms

Proposed Text

Corporate and other aggregate forms of organization are neither Persons nor Citizens under this Constitution and shall have neither protections, rights, nor legal standing under this Constitution

This Amendment shall not be construed to deny or disparage the power of Congress or the Several States to enact legislation that defines rights, powers, limitations, liabilities, and standing of such corporate and other aggregate forms of organization