Ruth Bader Ginsberg...Showing the "Imbecilities of Dotage"
By: Diane Sori / The Patriot Factor / Right Side Patriots on American Political Radio
"Of the three powers [...], the judiciary is next to nothing."
- French judge and political philosopher Montesquieu as quoted in Alexander Hamilton's Federalist No. 78 papers.
James Madison is commonly referred to as the
“Father of the Constitution”
because of his role in the document's drafting, its ratification, and
for his crafting of its first 10 amendments...what we know as the Bill of
Rights. The Constitution, which replaced the Articles of Confederation,
was signed on September 17, 1787 by delegates to the Constitutional
Convention in Philadelphia, and it established America's national
government and fundamental laws along with guaranteeing certain basic
individual protections and rights for American citizens.
The Constitution does not lay down the basics for what is called a
"democracy" for our Founders and Framers knew well that
"democracy" was the
basis for
“mob rule” not for the rule of law. And while some say the
Constitution is a
“living breathing document”...believing it to be
open-ended and flexible in its content thus being easily subject to
change...know it is not for that which is
“living” and
“breathing” can
easily
“die.” And many who believe that the Constitution does indeed
“live” do so solely in an attempt to twist its words to support whatever
agenda they wish it to support based upon their interpretation of its
words determining the meaning that matters to them alone.
If the Constitution were to
“die”...discarded if you will... chaos
would surely ensue, but that does not mean the Constitution cannot be
amended to allow for change. Remember, the Constitution's Framers were men
of great vision who designed the Constitution to
“endure,” but in order
for it to
“endure” as the times changed, Article V was included.
Describing in detail the process by which the Constitution could be
amended...amended not discarded...Article V states,
“The Congress,
whenever two thirds of both houses shall deem it necessary, shall
propose amendments to this Constitution, or, on the application of the
legislatures of two thirds of the several states, shall call a
convention for proposing amendments, which, in either case, shall be
valid to all intents and purposes, as part of this Constitution, when
ratified by the legislatures of three fourths of the several states, or
by conventions in three fourths thereof...”
And know that the Constitution has already been amended 27 times
since its ratification and I believe it's time for it to be amended
again...this time regarding lifetime appointments to the Supreme Court.
The U.S. Supreme Court is the only federal judicial body established by
the Constitution itself as per Article III Section I which states,
“The
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. The Judges, both of the supreme and inferior
Courts, shall hold their Offices during good Behaviour...”
And it's the two simple words
“good Behaviour”...whose meaning in
today's political world is quite ambiguous...for when did
“good Behaviour” turn into meaning
“for life” especially in regards to an
appointment that can only be terminated by an act of impeachment for
misconduct, voluntary retirement or death...and know that to date no
Supreme Court justice has ever been impeached.* And while the vast
majority of legal scholars interpret
“good Behaviour” to mean a lifetime
appointment for all federal judges...which Supreme Court justices
are...they do so by claiming said appointment is a fundamental
requirement for the separation-of-powers doctrine that is the
Constitution's basis. Yet the fact remains that nowhere in the
Constitution does it say the actual words that justices are to be
appointed
“for life.”
Word semantics perhaps, but the fact is that while
“good Behaviour”
applies to an action it does not apply to a time frame thus
basically being open-ended do to its very ambiguity. And dare we forget that one
person's
“good Behaviour” can be another persons bad...even regarding
the adjudication of the law. And because the Constitution deals solely
in the law, I would be safe in assuming that
“good Behaviour” would mean
how judges and justices interpret, present, decide, and adjudicate the
law as based upon the Constitution's words and not upon their personal
political ideologies held.
But if a decision was made based upon partisan politics, I believe,
that would qualify as being
“bad” behavior with today's activist judges
like Elena Kagan being a perfect example. But even that leaves open the
question of how many infractions of
“good Behaviour” are allowed before a
justice can be impeached...is it one, two, or three strikes you're out?
Our Constitution's Framers never addressed that issue leading me to
believe that Article V was purposely written as a way to address any
ambiguities, thus making it as important as Articles I and II.
But where exactly did the term
“good Behaviour” originate and why is
it in the Constitution to begin with instead of the words
“for
life”...the very two words that would have set a much needed definitive time frame for such presidential appointments.
The answer to that has to do with the fact that the Constitution's
Framers wanted Supreme Court’s justices (and federal judges) to be
protected from political corruption in regards to running for and being
elected to public office. They also wanted to make sure that an incoming
president did not remove a justice based solely upon their party's
politics, hence
“good Behaviour” no matter which party holds office...in
other words
“impartiality.”
But it's the words
“good Behaviour” themselves that has led me to
personally believe that Supreme Court appointments were never intended
to be
“for life” per say, but were intended to be but one part in making
sure that the Constitution
“endured.” And how did the
Framers intend this
“enduring” to take place...by deliberately leaving
certain meanings and time frames open to interpretation thus allowing
future generations to
“amend” the Constitution if need be.
“Amend” it
yes but to do so NOT according to the politics of the times...for
politics are fleeting at best...but
“amend” it in regards to what we
call the
“human condition.”
We all know that with age comes wisdom...even Thomas Jefferson in his
later years had the wisdom to see that he himself had made a mistake
regarding the words
“good Behaviour.” Thirty-three years after signing
the Constitution he realized
“good Behavior” was not just a political
entity but an important part of said
“human condition.” In fact, when
putting to paper the 1776 Drafts of the first Virginia state
constitution, Jefferson wrote that all judges were to serve during
“good
Behaviour” and that lower court judges could be removed by the highest
court for breach of
“good Behaviour.” Yet said thirty-three years later
Jefferson complained that these provisions in the Virginia constitution
had made judges
"independent of the nation itself...[and] irremovable,
but by their own body, for any depravities of conduct, and even by
their own body for the imbecilities of dotage."
In other words, Thomas Jefferson regretted what he signed after
realizing the words
“good Behaviour” were too open-ended regarding the
length of time a Supreme Court justice could serve. The Constitution's
signers never took into account what happens to one as they physically
age. Thomas Jefferson finally did but it was too late no matter his
belief that now there should be age limits on justices as per his
words
the
“imbecilities of dotage." Jefferson realized that with old age
not only comes wisdom but physical infirmities and mental ramifications
as well.
Remember that at the time of the Constitution's signing people lived on
average 40 or 50 years...if even that. True oldsters like Benjamin
Franklin were a rarity, but those like Jefferson had enough
“vision” to
know that as life expectancy increased so too would the tenure of
justices. And Jefferson did well by putting his thoughts about the
“imbecilities of dotage" in writing for now there would be no chance of
misinterpreting his intent regarding
“good Behaviour” or so he thought.
And with Jefferson's intent being clear, it's time we take his intent
and put it to good use for we now have sitting on High Court both Elena
Kagan who
“legislates” from the bench, and Ruth Bader Ginsberg whose
advanced age brings with it a visual perception of feebleness...what
Thomas Jefferson referred to as the
“imbecilities of dotage”...and a true lack of common
sense.
But first Elana Kagan. Her removal should be a simple
“can do” for
Justice Kagan outwardly legislated from the bench regarding her decision
on President Trump's temporary travel ban. Basing her negative ruling
not on Constitutional law but on her freely given admission that she was
“somewhat” influenced by then candidate Trump's tweets regarding
muslims and others, Kagan is a prime example of one's personal politics
coloring one's Supreme Court decision. A true impeachable offense if
only someone in Congress had the guts to draft the needed articles of
impeachment.
Now as for Ruth Bader Ginsberg. The question here is not just one of
chronological age but of when one is deemed too old...to feeble...to
make critical decisions that affect us all. And while some zero in on
the issue of physical health in regards to Justice Ginsberg... which
includes the usual for someone her age loss of vision and hearing
coupled with a deterioration in motor skills...and literally the ability
to stay awake...others simply say that at 85 years of age she simply
needs to step down as logic dictates that at such an advanced age
critical cognitive skills greatly diminish as well, and that includes
common sense. And on this I agree for anyone in their
“right mind”...as
in anyone who thinks clearly...could see that when one shows signs of
the
“imbecilities of dotage”...as has Justice Ginsberg...it is time to put
pride aside and step down.
Common sense as we all know is the the bane of many, but in Justice
Ginsberg's case her diminishing capacity for common sense has recently
manifested itself in the public venue for no one thinking clearly at 85
states for public consumption,
“I'm now 85. My senior colleague, Justice
John Paul Stevens, he stepped down when he was 90, so think I have
about at least five more years.”
“At least five more years” as in if Ginsberg reaches 90 she still
might not retire for her goal seems to be not to do right for our
country but to beat Justice Stevens as to who was the oldest justice to
retire. Talk about pride and unabashed arrogance coupled with a
political agenda that is blatantly obvious for Justice Ginsberg also
“signaled” earlier this year that if fellow Democrat Hillary Clinton had
won the presidency in 2016, she would likely have announced her
retirement by this past spring. And that alone showed
“bad” as opposed
to
“good Behaviour,” and should have resulted in Ginsberg being
immediately removed from the High Court for a woman as learned as she in
constitution law, and if in her
“right mind,” would have known that
such a statement is truly political in nature as it goes against political
“impartiality” which all justices are required to show.
And blatant political bias coupled with a true lack of common sense
again manifested itself in
“bad” behavior when last October, Justice
Ginsberg was asked about possible retirement. Saying,
"My answer is as
long as I can do the job full steam, I will do it" ...I guess
"full steam" means to this
85-year old justice that
it's okay to fall asleep on
the job.
But Justice Ginsberg's ultimate act of
“bad” behavior in regards specifically to
political bias were these words said to Molly Smith, the director of the
play 'The Originalist' (a play based upon the life of Justice Antonin Scalia)
, "My dear spouse would say that the true symbol
of the United States is not the bald eagle--it is the pendulum. And
when it goes very far in one direction you can count on its swinging
back." And what is the pendulum but a metaphor for the political make-up
of the High Court which right now has the pendulum swinging to the
right...as in being more conservative in its make up. But Justice
Ginsberg obviously feels that if she can fend off retirement long enough to deny President Trump his third nominee, that she would be
the political advocate who helped swing the pendulum back to the left...a sad end to what was once an illustrious career.
There can be no other explanation than that for an 85-year old woman
who knows well that she is no longer physically able or mentally astute
enough to
“impartially” carry on with the honorable task of which she
was charged and who is not exhibiting the
“good Behaviour” that is
constitutionally required of those who sit on the High Court, should
immediately be removed from the bench either through impeachment or by
being given the chance to
“save face” by retiring...something that is so
long overdue.
________________________________________
* For an interesting take on the history of aged Supreme Court justices see Boston Globe Columnist Jeff Jacoby's 2005 article
When justices refuse to retire
Copyright @ 2018 Diane Sori / The Patriot Factor / All Rights Reserved.
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For more political commentary please visit my
RIGHT SIDE PATRIOTS partner Craig Andresen's
blog
The National Patriot to read his latest article
Ocasio-Cortez...Nothing But a Facade
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