A Politicized Branch: A Look at Federalist #78

The importance of an independent Judicial Branch was highly stressed by Hamilton in Essay 78 of the Federalist Papers. It was thought that with life appointments judges would be able to avoid the pressures that politics inherently creates. It was argued that lifetime appointments would further separate the judicial branch from the Executive and Legislative Branch’s. This separation has failed as successive Presidents have made their appointments solely on political merits and the legislative branch has created Legislation that further politicized the process of appointing a judge. This partisanship could not have been clearer when the Senate Republicans blocked President Obama’s pick, Merrick Garland, for the Supreme Court in 2016. Or when Democrats changed the rules for Presidential nominees that allowed for a simple majority to advance a nominee. Thus, the Judicial Branch is no longer, and perhaps never was, the intermediary between the Executive and Legislative Branch. Instead it has become a Court which both branch’s try and use to push their respective ideological agendas.

A quick look at history will show that nominations to the supreme court have always involved politics. Indeed, the first Supreme Court Chief Justice appointed by Washington was John Jay, a staunch Federalist and one of the advocates for a strong Federal government. This shows that from the beginning the Supreme Court was far from independent and was indeed intimately connected to the Executive, being relied upon to push said executive’s policy agenda. This appointment paid off for Federalist when the Supreme Court ruled in Chisholm v. Georgia that the federal courts had the power to supersede state sovereignty. Another example of this connection is when Adams was leaving his one-term Presidency and, along with Congress, passed an act that filled as many judgeships as possible. Further showing the reliance that Congress and the Executive placed on the Judicial branch pushing their agenda. This act was particularly important as one of the appointees, John Marshall, helped establish the concept of judicial review in the landmark case Marbury v. Madison. In light of this history current politicians acting surprised at the highly political nature of appointing nominees to the Supreme Court comes off as disingenuous. Indeed, early Federalist assertions that the Judicial Branch would be independent from other branches of government also seems a bit naïve at best and at worst a downright lie.

 

Federalist #78 presented to the young Republic an idealized version of how the Judicial Branch ought to function. In reality, the Federalist knew that the Judicial Branch would be connected to other branches of government but they also had to convince the states to ratify the Constitution and thus were willing to lie to accomplish such goals. The way judges were nominated assured this reality as executives would most probably pick candidates that would push their political agenda. Likewise, depending on the party in power, the Congress would only accept candidates brought before them that aligned with their political interests. I don’t necessarily view a politicized Judicial Branch as a bad thing as I find it important for a Judicial System to evolve with the views of the populace instead of worrying about the original intent of the founders. However, I do believe it is harmful for politicians on both sides to become so polarized as to not even give a nominee a hearing. Acting in such a matter could create more judicial decisions that uphold laws that otherwise would have been overturned had another judge been there to vote on it. The Judicial Branch has been political since its creation and will continue to be so and long as the current system stands.

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2 Responses to A Politicized Branch: A Look at Federalist #78

  1. jackbuck1 says:

    I really like your post; however, I would like to point out a concern that I noticed in the post. You said Democrats changed the rules to allow a simple majority to advance nominations. This is not the case, Republicans used their “nuclear option” plan to do that. So, in fact it was not the Democrats but the Republicans that did that. In 2013, the senate Democrats did change some rules to block Republican filibusters for lower courts and government positions but did not touch the Supreme Court. Taking those two things into account both parties are guilty of pushing their agenda in the Judicial Branch.
    I do agree with you. Political bias has some what hurt the court system. I think that it was appalling that the Republicans would not allow Merrick the nomination. It was postponed for so long that they were just banking on the fact that Obama’s term was almost done and they would get a new nominee. I am pretty sure that the Nomination expired after about 290 days when the 114th congress came to an end in 2017. I think because Gorsuch got the nomination and how he got it is weird. This upset a lot of people because this seemed unfair and the only reason they could push the nomination is by changing the rules.
    I would like to ask you a question. How do you think the system should change if at all? Also do you think the system can change? The reason I am asking is because there does seem to be a disconnect on how the Judicial branch should work and how it does today. In my opinion I do think we can change the system to where these political biases will not interfere with how we nominate people to a Justice position. It will be hard but the system does need to evolve with how we think as a society.

    https://www.nytimes.com/2017/04/06/us/politics/neil-gorsuch-supreme-court-senate.html

    • jacobdsaaevdra says:

      Your correct my argument, which in this case didn’t explain well, was that the Democrats had some responsibility in the politicalization of the nomination process. Though yeah this was not yet the case for the Supreme Court.

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