With the Supreme Court resuming its work this week, and with presidential primaries on the horizon, it is an opportune moment to reflect on the importance of the President's power to nominate federal judges. An independent and impartial judiciary is the very bedrock of our justice system.
As John Adams put it in the Massachusetts Declaration of Rights: "It is essential to the preservation of the rights of every individual, his life, liberty, property and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit."
The Founders well understood how essential it would be to find judges who could live up to the promises contained in the judicial oath that every federal judge has taken since the early years of the republic: to "administer justice without respect to persons, and do equal right to the poor and to the rich, and … impartially discharge and perform all the duties incumbent on me…under the Constitution and laws of the United States."
Thoughtful citizens, Alexander Hamilton wrote in Federalist 78, ought to insist upon integrity and moderation in the judiciary, for no one "can be sure that he may not be tomorrow the victim of a spirit of injustice, by which he may be a gainer today."
The Founders, with their realistic views of human nature, would not have been surprised to see judges who sometimes faltered in their ability to live up to those high ideals. What would have surprised them, though, would be the appearance of a breed of judges who seem to disagree with the principles they pledged to uphold, judges who seem to have adopted a new oath for themselves that goes something like this: "I do solemnly swear to administer justice with close attention to the individual characteristics of the parties, to show compassion to those I deem deserving, and to discharge my duties according to my personal understanding of the Constitution, the laws of the United States, and such higher laws as have been revealed to me."
When judges depart from the basic principles of the rule of law and judicial impartiality, the effects are like those of deficit spending or toxic waste. They are not easy to discern until the harm approaches crisis proportions.
Mary Ann Glendon is the Learned Hand Professor of Law at Harvard University. She serves as a co-chair of the Romney for President Advisory Committee on the Constitution and the Courts.