Judicial branch shouldn’t be political

By Joe Katz

There’s nothing like a good scandal to bring out the bloodlust in politicians. As soon as some bit of misbehavior hits the front pages, congressmen from both sides of the aisle go after the alleged offenders like hyenas pouncing on a wounded gazelle. No matter who is in power, Democrats and Republicans alike trip over each other racing to the nearest microphone to bitterly condemn these “foul deeds,” promise investigations, and ominously hint at “severe consequences” for the malefactors and “major changes” on the horizon. And they follow through—up to the moment when they deliver their constituents the promised head on a pikestaff. Then the holier-than-thou rancor dissipates into self-righteous self-congratulation, and everyone moves on. At least until next time.

Sadly, it already seems clear that the Attorneygate fiasco will not break this pattern. To avenge the purportedly politically motivated firings of eight U.S. attorneys, Capitol Hill has set its sights on two major targets in the executive branch: Attorney General Alberto Gonzalez and White House Svengali Karl Rove. So far, it appears that no one is focused on anything more than harpooning these particular white whales. As soon as Congress has sacrificed these scapegoats, it is primed to declare victory and let the incident fade in history.

Make no mistake, there are plenty of good reasons to want Alberto Gonzalez and Karl Rove out of public life, and if proven true, these accusations alone should be more than enough to justify their sackings. At the same time, in contenting ourselves with removing them from office, we are missing a golden chance to fix a serious problem in American government.

The public anger that results from scandals opens a window of opportunity for our elected representatives. They have the political capital and motivation they need to make the tough choices necessary for effective reform. Campaigns for real change often founder when our congressmen place too much weight on the costs of angering those who benefit from the current system. If there’s any sure way to adjust their calculations, the prospect of an attack ad with a menacing voice proclaiming that “in the wake of the U.S. Attorney scandal, Senator So-and-so voted against legislation that would have protected our law enforcement officers” is it.

There is a lot that needs to be done to address the underlying causes of Attorneygate. As outrageous as the current allegations seem, they are the natural end products of a long process of politicizing the justice system. Since the Warren Court era in particular, we have all but abandoned our vision of judges as independent arbiters. We now consider the judiciary a purely political branch, and the Roe v. Wade litmus test we apply to assess judges in the selection process reflects that new way of thinking. Judges are evaluated on whether or not their actions satisfy their “constituency,” just like elected officials.

The U.S. attorneys had escaped most of this devolution, but they have long been susceptible to political manipulation. It was only a matter of time before something brought them down to the level of the courts, particularly after the 2006 revisions to the U.S.A. Patriot Act allowed the executive branch to essentially select them without Senate confirmation. In the past, recess appointments have been used to sneak politically extreme judges onto the federal bench. The White House seems to have exploited the change in the law to similar effect.

Against this background, who wouldn’t conclude that you could force out eight productive U.S. attorneys without anyone noticing? After all, it’s no more political than anything else either of the popular branches regularly does to the legal world. We have spent decades treating the justice system as though it were just another avenue for policy-making. Firing Alberto Gonzalez and Karl Rove isn’t going to erase that legacy.

Fortunately, there is also a lot that can be done. The recent act of closing the loophole that allows for appointment of interim U.S. attorneys without Congressional consent will do some good, but giving the Senate a voice does not exactly guarantee that politics won’t influence decisions. We need to take significant action to re-professionalize American justice, putting competence at the top of our priority list and accepting that this will not always yield decisions that match our political values. This goal would be furthered by officially ending the custom of granting the President wide latitude in dismissing U.S. attorneys through a “reverse confirmation” process. We would also be well served by amending the Constitution to require a two-thirds majority in the Senate to confirm federal judges.

These steps will serve us both instrumentally and constructively. The less we actively treat the justice system like another political branch, the less we will think about it as such. All it takes to make progress is to use the fuel of the electorate’s rage to get the feedback loop started, rather than to burn high-level officials at the stake.

Opportunities to actually improve the way American politics works are rare and precious things. In recent years, we’ve seen too many of them dithered away in witch hunts as opposed to actually leading to campaign finance or lobbying reform. This particular misconduct has given us another shot to get it right. We cannot waste it on accomplishing nothing more than axing Alberto and kicking out Karl.