Cunningham: Democracy imperiled
Published 3:00 pm Saturday, September 17, 2022
By Justice Bill Cunningham
The constitutions of the United States, and Kentucky are the only things that separates us from the jungle.
Try to imagine where you might be without the US Constitution.
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Some of you might be in slave labor somewhere because of the way you spell your last name.
Some of you might be living in basements of friends or hay stacks, the locations of which change nightly as you move constantly to avoid arrest and prosecution because of your political views.
Some of you might be sitting in prison cells because you are Christian.
How has a document written in 1787 endured for 235 years, governing the most powerful country in the world?
How has this country and the liberty and justice we enjoy survived into the cell phone age under this ancient piece of paper?
First, the genius of our founding fathers built into our constitution a perpetual check on the abuse of power by any one branch of government. They established the separation of powers between the executive, legislative, and judicial branches. By doing so they created an independent judiciary.
Secondly, we have had men and women over our history serving in our executive and legislative branches who have respected the independence of the judiciary as a fundamental principle of democracy.
This system of checks and balances embedded in our ancient charter, is the fire wall against tyranny. In that principle is the solid rock foundation upon which our democracy has lasted, not without its close moments.
The vitality of our constitutions depend upon the independent judiciary.
When the legislature passes laws that are unconstitutional and infringement upon the rights of the citizens, the court system strikes them down. This naturally offends and even angers the legislature. That branch doubles its fist and wants to fight. Then, cooler and wiser heads prevail recognizing that is the respective role of the courts and they must be saluted.
Same thing when the executive branch overreaches. One president—Franklin D. Roosevelt—did not go quietly into the night when some of his major New Deal legislation was ruled unconstitutional by the US Constitutional. To curb the power of the court, he beseeched Congress to dilute the power of the judiciary. It was called “court packing” to increase the number of justices on the Court. FDR would then be able to appoint his own new votes to the court and claim the majority for himself. Congress—controlled by the same Democratic Party of the president-wisely saw this as a baby step toward tyranny and his effort was rebuffed.
This wrangling and tension between these branches of government has been a healthy check on the abuse of power by any one branch. The stability of our constitutional rule is akin to a three legged stool. Remove one of the legs, and the stool upends. Remove or weaken one branch of government our democracy topples.
But dark clouds are gathering over our country. There is a insidious movement afoot to undermine the independences of the judiciary.
The appointments of Federal judges and Supreme Court justices have become politicized. Both parties have abused the constitutional process by placing their own political litmus tests on judicial candidates. These attacks undermines the separation of powers and threatens our democracy.
Some members of state legislature wishes to politicize our judicial races in Kentucky by making them partisan. That means forcing judicial candidates to take positions consistent with the political views of one party over another. We hear the terms “conservative” or “liberal” bantered around in judicial races. Those terms should be meaningless since judges are supposed to be independent and not committed to either of those labels. Allowing our state judicial candidates to become partisans will engender a lack of respect for the independence of our judiciary.
What can you do?
We often feel helpless to contribute in a significant way in preserving our democracy and freedom.
But on November 8 the voters of Kentucky have a great opportunity to strike a blow for judicial independence, and in doing so, strike a blow for the survival of our constitution and democracy.
Want to do your part to preserve our democracy?
Get involved in judicial elections.
Here is a check list of things to consider in voting in judicial elections. In following it, you do can your part in helping to preserve the critical independence of the judiciary in this state.
Respect. Favor the judicial candidate who shows respect for the court system, and conducts themselves like you would want a judge to act.
Be wary of judges or justices who have been endorsed by either political party. While this is not necessarily a disqualification (candidates cannot control who endorses them), it should put the voter on notice that there is a political group of people who have an interest in having one of their own as your judge.
Do not vote for a judicial candidate who commits to do anything in office other than to be fair and impartial and work hard. Those who commit to how they will vote on certain issues if elected, cannot by some magical transformation, be neutral and fair when elected.
Refrain from voting for any judicial candidate who touts their own political party in his or her campaign advertising. Think about what they are saying. “I belong to this political party. As a judge I will not be neutral. I will vote according to that party’s political purpose.” Otherwise, what is the relevancy of mentioning their political party? You want a political judge? There’s your candidate. You want a fair and impartial judge, vote the other way.
Lastly, and most importantly, here is a crucial fact in considering a judicial candidate. Any candidate who commits themselves to a certain position on any issue, including abortion, guns, and capital punishment, will most likely be unable to rule or vote on those questions. They will be disqualified because of previously expressed bias. Another judge or justice—not elected by the people—will be appointed to take their place. That replacement judge or justice will never have to confront the voters about his or her vote. Candidates who expresses their views on such issues during the campaign are likely to be a no show when the rubber meets the road.
You may belong to a comfortable majority and think you will never need an independent judge to protect your rights. Don’t be lulled into that delusion. The hue and sway of American demographics and persuasions are-like a moving stream-constantly changing. Without a constitutional separation of powers, interpreted by an independent judiciary, the trampling boots of tyranny and despotism will eventually show up at your door. Here are the haunting words of Reverend Martin Niemoller, a German minister imprisoned by Hitler.
“First they came for the Communists, and I did not speak out—because I was not a Communist.
Then they came for the trade unionists, and I did not speak out —because I was not a trade unionist.
Then they came for the Jews, and I did not speak out-because I was not a Jew
Then they came for me—and there was no one left to speak for me.”
A dangerous movement is afoot in this state which wishes to destroy the independence of our court system by making it bend to its political ideologies.
If these goals are accomplished then we will no longer have the three branches of government checking and balancing the abuse of power of the others. Our separation of powers principle, which has enlivened and preserved our ancient constitution for over two centuries, will then be relegated to the trash bin of history. Government “of the people, by the people, and for the people”so beloved by Lincoln and all of us, shall perish from this earth.