State, federal court system crashed by partisan politics

Most of the time these columns stick pretty close to home, on topics about the people and places around the region and state.

This one ranges a little farther afield, about the current state of American courts and the presidency.

On the other hand, I agree with the maxim that all politics is local. Those two institutions impact each and every one of us – and our kids and grandkids – in profound ways.

Going way back, to when I took high school civics and government classes, my teacher – I remember her well, Mrs. Kiley – instructed students the courts’ sole purpose is to mete out impartial justice and administer the law fairly and equally. The other two branches of government – legislative and executive – are subject to partisan politics.

Judges have one guiding principle. The rule of law applies to everybody without exception – Democrat, Republican, rich, poor, ethnicity, gender. Everybody.

Something has changed. And it’s not good.

For most of my nearly five decades as a journalist, I would say courts managed to stay at arm’s length from partisan politics. It could be frustrating. When we interviewed candidates for anything from local courts to the Wisconsin Supreme Court, those running typically would talk about only their education, backgrounds in legal practice and so forth. Ask a substantive question, they would decline to answer, on grounds the topic might one day come before them as a judge. Candidates could run on a paltry budget because it wasn’t a knock-down partisan brawl.

Today, it’s just the opposite. Wisconsin still calls these “nonpartisan races,” but it’s a lie and everybody knows it. Partisans pay the bills and, later, expect judges to pay it back by hewing to the ideological line. That applies in Wisconsin, where judges are elected.

Federal judges – including, most i m p o r t a n t l y , Supreme Court justices – are appointed. Anyone paying the slightest attention knows partisanship now rules who does or doesn’t get a nomination. Senate confirmation votes are almost entirely along partisan lines.

The Supreme Court ruling on presidential immunity illustrates where that takes America. The principle that no one is above the law is dead. Presidents are above the law, immune for actions taken in office. Supporters of the decision – settled in a 6-3 vote with all conservative justices (five of them male) on one side and the three liberals (all female) on the other – say worries raised are basically hysteria.

Not true. Forget Trump. Look at Nixon. It was the Watergate cover-up that torpedoed his presidency and forced him to resign. But if the same circumstance occurred today, Nixon would be immune for the orders he issued from behind the Resolute Desk in the Oval Office. Meanwhile, all his aides – the ones who implemented the cover-up – could still be indicted for a crime, tried, convicted and jailed. That is the majority justices’ new reality.

Courts rely on respect and trust for authority. Polling clearly shows respect and trust have plunged and today are in freefall, coinciding with the partisan capture of the bench.

For those who still think it’s worthwhile to look to the Founders for originalist guidance, consider this passage written by Alexander Hamilton in Federalist Paper No. 77 regarding the lack of presidential, or post-presidential, immunity from prosecution: “The answer to this question has been anticipated in the investigation of its other characteristics, and is satisfactorily deducible from these circumstances; from the election of the President once in four years by persons immediately chosen by the people for that purpose; and from his being at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other, and to forfeiture of life and estate by subsequent prosecution in the common course of law.”

The Founders’ intent could not be more obvious. Presidential immunity from prosecution is a total fabrication by a partisan majority of today’s United States Supreme Court.

Bill Barth is the former Editor of the Beloit Daily News, and a member of the Wisconsin Newspaper Hall of Fame. Write to him at bbarth@beloitdailynews.com.