American Rebirth Paper No. 5

Judicial System Modifications

This series of papers proposes solutions to American governmental problems that could be addressed by a Constitutional Convention. Please refer to American Rebirth Paper No. 0 to understand additional context of this paper and subsequent papers. American Rebirth Papers No. 1, No. 2, No. 3, and No. 4 addressed problems with and proposed solutions to Federal, State, and County elections for President, Governors, County Executives, Federal and State Congressman and Senators, and other positions in the Federal, State, and County Governments. Those papers dealt with the Executive and Legislative branches of government. American Rebirth Paper No. 5 addresses the Judicial branch.

Below is a summary of the U.S. judicial system from the “Law Library – American Law and Legal Information” (Other Free Encyclopedias).

The U.S. judiciary is a hierarchical system of trial and appellate courts at both the state and federal levels. In general, a lawsuit is originally filed with a trial court that hears the suit and determines its merits. Parties aggrieved by a final judgment have the right to appeal the decision. They do so by asking an appellate court to review the decision of a trial court.

The structure of state court systems varies by state, but four levels generally can be identified: minor courts, major trial courts, intermediate appellate courts, and state supreme courts. Minor courts handle the least serious cases. For example, municipal courts handle city ordinance violations, such as speeding tickets and parking violations. Cases that involve state constitutional issues, state statutes, and COMMON LAW are dealt with by major trial courts. For example, felony cases, such as murder or rape, would be handled in a major trial court. Trial courts are called by different names in different states. For example, in Pennsylvania they are called courts of COMMON PLEAS.

Intermediate appellate courts, called courts of appeals, review cases that have been decided by trial courts. They do not hear new evidence; they decide whether the lower court (the trial court) correctly applied the law in the case. State supreme courts review cases that deal with state law. The decision of the court is final since the state supreme court is the ultimate arbiter of state laws and the state constitution. Supreme courts are called by various names depending on the state. For example, West Virginia calls its state supreme court the Supreme Court of Appeals.

Federal cases, including civil and criminal, are handled by federal district courts. There are 94 district courts, with at least one in each state, as well as a district court for the District of Columbia, Guam, the Northern Mariana Islands, Puerto Rico, and the Virgin Islands. The number of judgeships appointed to each district is laid out in Title 28, Section 133 of the U.S. Code, which is a compilation of the permanent laws of the United States.

The 94 districts are divided into 12 regional circuits. Each of these circuits has a U.S. court of appeals, also called a circuit court. U.S. courts of appeals were created by the Evarts Act of 1891 (28 U.S.C.A. § 43); the central location of each court is determined by statute (28 U.S.C.A. § 41 [1995]). Each federal appellate court has jurisdiction over a certain geographic area and may hear appeals only from federal district courts within that jurisdiction. The Court of Appeals for the Federal Circuit, however, has nationwide jurisdiction to handle certain kinds of cases, including patent cases and those that involve trade with other countries.

The Supreme Court is the nation's highest appellate court. It is sometimes called the "court of last resort" because once the Court reviews a case, and renders a final judgment, further appeals cannot be made. The nine justices who sit on the Supreme Court review cases that begin at either the federal or state level. These cases usually focus on important issues involving the U.S. Constitution and federal law. The Supreme Court receives its authority from Article III, Section 1, of the U.S. Constitution, which states that "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

There are other courts besides these described here but knowing more about these specialized courts doesn’t change the proposed modifications I will cover in this paper, so I’ve chosen to not go into detail about these specialized courts.

In a perfect judicial system, the following would be true:

1.       No innocent person would be convicted.

2.       No person that had committed a crime would be able to escape conviction and punishment.

3.       Prosecutors would be interested only in fairness in their approach to justice. If they found evidence that exonerated a person charged with a crime, they would release that person. They would assess the evidence and only charge the person for the crimes committed and would not over-charge the person to coerce a plea-deal. They would not ask for an excessive bail amount to keep a charged person in prison to force the defendant to agree to a plea deal. They would prosecute all crimes even if they believed the law that was broken shouldn’t be illegal.

4.       Judges would be impartial, favoring neither the prosecution nor the defense, but making sure the trial is held in a manner that is fair and equitable.

Of course, no justice system can be perfect. In developing a justice system, there is a fundamental question of whether to err on the side of innocent or err on the side of the guilty. In other words, which is worse – convicting an innocent person or letting a guilty person free? The American judicial system is generally designed to make it difficult to convict people – the number of guilty people not convicted far out-weighs the number of innocent people convicted.

In my opinion, the protections provided in the Constitution strike the right balance to minimize convictions of the innocent. However, it is important that judges and prosecutors adhere to the Constitution. If both the judge and prosecutor treat a defendant unfairly, perhaps for political reasons, then the defendant could appeal to a higher court. But, the time and expense required to appeal cases is often punishment in itself. The government has the power to inflict excessive financial and personal injury on defendants by forcing them to defend themselves, a problem that is exacerbated by a judicial system that often strings trials out over many months or years.

In conclusion, the problem with our judicial system is not the structure of the system or the rights granted by the Constitution, it is that some judges and prosecutors are less than honorable and, in some cases, unworthy of their positions.

Issues that can arise when judges and prosecutors let ideology or politics sway their approach to justice include the following:

1.       Prosecutors that are too lenient and chose to not prosecute or charge the defender for lesser crimes. An example of this case is George Gascón, the Los Angeles County District Attorney, who was elected based on a wave of support for police reform that followed the death of George Floyd during an arrest by the Milwaukee police. On his first day in office, Gascón announced plans to do away with the use of the death penalty, sentencing enhancements and the practice of trying juveniles as adults. His policies drew immediate backlash among law enforcement officers, victims’ rights groups and many of the prosecutors in the Los Angeles County District Attorney’s Office. Gascón has asked the prosecutors working for him to not seek the posting of bail except in cases involving sexual assaults or violence, thus allowing many lawbreakers that typically would have to post bail to be free to commit more crimes while awaiting trial. As mentioned in American Rebirth Paper No. 3, George Soros has funded campaigns for several prosecutor or district attorney races, including George Gascón’s. Soros’s goal is to elect prosecutors that go easy on criminals and use their position to persecute individuals that are conservatives. Gascón has been true to Soros’s goals.

2.       Prosecutors that over zealously pursue convictions for political reasons. An example of this case is the Kyle Rittenhouse case. Rittenhouse was working with others to try and protect businesses in Kenosha, Wisconsin, where rioting had broken out following the shooting of Jacob Blake while police were attempting to arrest him. During the rioting, Rittenhouse was chased by a group of rioters. In the melee that followed, Rittenhouse, who was armed with a rifle, killed two rioters and severely injured a third as they attempted to assault him. Videos of the events clearly showed that Rittenhouse was acting in self-defense and was never the initial aggressor. The political climate at the time favored the rioters as they were fighting for the righteous cause protesting police violence against African Americans (Jacob Blake’s race). Rittenhouse was labeled as a white supremacist by the media and many Democrats jumped on the bandwagon to libel his character. For example, Congresswoman Jackie Speier (Democrat from California) labeled Rittenhouse a murderer, saying “Rittenhouse, murderer of two and attempted murderer of one, illegally crosses state lines with an assault weapon and @POTUS [Donald Trump] defends him. Truly, what is this country coming to?” The Kenosha District Attorney yielded to the unrelenting political pressure and charged Rittenhouse with several crimes, including first degree homicide.

3.       Judges that are “activists”.  Examples of activist judges include the following:

a.       Using their position to thwart or delay constitutionally valid Executive Orders (EO) issued by the President. For example, on January 27, 2017, President Trump signed an EO called “Protecting the Nation from Foreign Terrorist Entry into the United States” which was intended to screen out “radical Islamic terrorists.” The EO included the following: (1) suspend admission of all refugees for 120 days while a new system is put in place to tighten vetting, (2) ban the entry of foreign nationals for 90 days from seven majority Muslim countries: Syria, Iran, Sudan, Libya, Somalia, Yemen and Iran and (3) halt the flow of refugees from Syria until further notice.  On February 3, a federal judge in Seattle, WA temporarily blocked President Trump’s EO from being enforced nationwide. The White House vowed to fight the decision, calling it an “outrageous” ruling. Two days later, a Federal Appeals Court rejected a request by the Justice Department to immediately restore President Trump’s EO and instead asked the state of Washington and the Trump administration to file more arguments by February 6. The ruling meant that refugees and travelers from seven predominantly Muslim nations would continue to be able to enter the United States. In January 2018, the U.S. Supreme Court agreed to hear arguments on the latest version of the travel ban and on June 26, 2018, voted (in a 5-to-4 vote) to uphold the constitutionality of the final version of the Muslim ban. While the lower courts were able to force some changes (minor) to the so-called Muslim ban (it wasn’t a ban on Muslims, but rather, a ban on foreign nationals from certain countries that tend to be the source of terrorism), ultimately the Supreme Court upheld the EO, but not until the EO had been effectively neutered for a year and a half.  

b.       Allowing frivolous lawsuits to move forward despite the lack of any basis for the lawsuit. For example, The New York City government sued the world’s five largest publicly traded oil companies, seeking to hold them responsible for present and future damage to the city from climate change. The suit, filed in January, 2018, against BP, Chevron, Conoco-Phillips, ExxonMobil and Royal Dutch Shell, claimed the companies together produced 11 percent of all of global-warming gases through the oil and gas products they have sold over the years. It was also charged that the companies and the industry they are part of have known for some time about the consequences but sought to obscure them.“ In this litigation, the City seeks to shift the costs of protecting the City from climate change impacts back onto the companies that have done nearly all they could to create this existential threat,” reads the lawsuit, brought by New York corporation counsel Zachary Carter and filed in U.S. District Court for the Southern District of New York. At face value, this lawsuit is totally without merit. It would be the same as suing automobile manufacturers for fatalities caused by drunk drivers. The oil companies produce products (gasoline, etc.) that are legal, have a huge demand, and are very beneficial to society. They are produced, transported, and delivered to the consumer while following all regulations that have been enacted by the government. Despite the obvious frivolous nature of the lawsuit, the judge in this case allowed the lawsuit to proceed.

c.       Allowing lawbreakers out of jail or out on minimal or no bail that are likely a danger to society. For example, in January, 2021, a Philadelphia man was fatally shot by an accused felon shortly after the suspect was released from jail on dramatically reduced bail. “This male was on the street with two open felony cases because his bail was reduced from 200K to 12K,” tweeted Derrick Wood, the commanding officer of the Philadelphia Police Department’s southwestern division. “This is ridiculous and another example of bail decisions that are being made without considering the safety of the community. Consequences matter.”

d.       Choosing to “go hard” on defendants for political reasons. For example, consider the case of General Michael Flynn, who served as President Trump’s National Security Advisor for a very short period. This is a long and complicated story, so I will allow the reader to investigate further on their own to understand the entire story. Flynn had pled guilty to lying to the FBI, despite Flynn having no knowledge at the time the FBI was talking to him that he was under investigation. Flynn pled guilty in an effort to put the case behind him, as he was having to spend much of his life’s savings in his defense and the FBI threatened to go after his son. Things got complicated during the sentencing phase of the trial which became a long, drawn-out situation. During this phase of the trial, Flynn recognized he had made a mistake in pleading guilty, and he hired a new lawyer (Sidney Powell) to help him to change his plea to not guilty based on the claim that the FBI had acted improperly in their initial interview with him (where he supposedly had lied) and that the Justice Department had charged him despite having exculpatory evidence that he had not lied (the FBI agents that interviewed him were on the record as saying that it was their opinion that Flynn had not lied). Through the discovery process, Powell was able to obtain information from the FBI regarding their initial perception of the Flynn interview, where they were of the opinion he had not lied. The Justice Department at this point decided to drop the case against Flynn. If I were the judge in this case, I would immediately dismiss the case, wouldn’t you? That did not happen. Instead, the judge, U.S. District Court Judge Emmet Sullivan, rejected the Justice Department request to dismiss the case and sought to impose a sentence on Flynn. The case finally ended when President Trump pardoned Flynn.

Given these issues with prosecutors and judges, what can be done to address the problems? First, judges and prosecutors should not be elected. There are two problems with elections for these positions:

  • Most voters have very little knowledge of the candidates.

  • It is relatively inexpensive to fund campaigns for candidates, such as has been done by George Soros. Given the limited knowledge of the candidates by the voters, campaign funding that inundates voters with flyers (either positive support of the preferred candidate or negative support for the opponent) and yard signs and television commercials (and other media platforms) can essentially buy the election.

By making these positions appointed instead of elected positions, the influence of money is negated.

The proposed approach to filling prosecutorial positions is as follows:

1.       At the federal level, the Attorney General is responsible for overseeing the hiring of all prosecutorial positions.

2.       When a position becomes open, prospective candidates may apply to the position. Qualified candidates are reviewed based on their resumes and a short list is identified for job interviews, which are conducted by other prosecutors in the office that has the opening.

3.       Every four years, within 60 days of the new president being sworn in, the employment of ten percent of the prosecutors is terminated. The President may confer with his Attorney General on which prosecutors will be terminated, but that is not a requirement. These terminations may occur at any location and at any level. Following termination, the prosecutors are ineligible for other prosecutorial positions. The terminated positions are then refilled (although not necessarily so) through the hiring process.

4.       At the state level, the same approach used at the federal level is used, with the State Attorney General responsible for hiring and a ten percent reduction in force every four years as dictated by the Governor.

Prosecutorial terminations every four years will tend to provide incentive for prosecutors to be moderate, as those that fulfill their roles at either end of the political extremes (left or right) would be the most likely to be terminated.

The proposed approach for filling judge positions is as follows:

1.       Federal Supreme Court judges are selected using the current method.

2.       Prospective judges must pass a test (analogous to the bar exam for lawyers) to qualify for judgeships. A test must be passed at each level, with prospective Supreme Court judges having to pass the most difficult test.

3.       Supreme Court judges are responsible for hiring judges for the district courts. When a position becomes open, prospective candidates may apply to the position. Qualified candidates are reviewed based on their resumes and a short list is identified for job interviews, which are conducted by some of the Supreme Court judges as well as other judges at the district level.

4.       Judges at lower levels in the Federal judicial system are hired in a similar manner with judges at the next higher level in the system responsible for interviewing and hiring new judges.

5.       State Supreme Court judges are nominated by the Governor and reviewed and approved by the State Senate.

6.       Judges in the State Judicial system are hired in a manner like the Federal System.

7.       Every four years, within 60 days of the new President being sworn in, the employment of ten percent of the judges (except for Supreme Court judges) is terminated. The President may confer with his Attorney General on which judges will be terminated, but that is not a requirement. These terminations may occur at any location and at any level. Following termination, the judges are ineligible for other judge positions. The terminated positions are then refilled (although not necessarily so) through the hiring process. At the state level, ten percent of the judges are terminated within 60 days of the Governor being sworn in, and the Governor is responsible for selecting the judges for termination.

As with prosecutorial terminations, termination of judges every four years will tend to provide incentive for judges to be moderate, as those that fulfill their roles at either end of the political extremes (left or right) would be the most likely to be terminated.