CLAY JENKINSON: The Jefferson Watch — The Supreme Court: Political From The Get-Go

We like to think of the Supreme Court as a nonpartisan and completely independent branch of government that makes sure laws passed by Congress and the states conform to the provisions of the United States Constitution.

The Supreme Court aspires to that Olympian detachment and judicial neutrality but seldom achieves it. Like it or not, there is a political substratum in court appointments, and it can produce great political tension at unsettled moments in American life. Like now.

Presidents nominate Supreme Court justices and the Senate has to confirm. There has been occasional trouble since the very beginning.

The first justice to be denied a seat on the court was a man named John Rutledge. It was 1795, just seven years into the new constitutional order. Rutledge had written an op ed piece critical of the Jay Treaty — a 1794 treaty with Britain that tried to resolve certain lingering issues from the War of Independence. That was enough for a Federalist Senate to scotch his candidacy.

Jefferson came into office in 1801 in what he called the Second American Revolution. But poised to prevent that revolution was Chief Justice John Marshall, Jefferson’s distant cousin. He was put into his life-tenured position in the last months of John Adams’ failed one-term administration. Adams, who distrusted Jefferson’s democratic radicalism, essentially engaged in last-minute court packing — Marshall and dozens of other midnight appointments — to make sure Jefferson did not take things too far to the left.

Marshall went on to serve for 34 years. He was perhaps the greatest of all Supreme Court justices. He was indeed a thorn in Jefferson’s side. Marshall wanted America to be a great centralized nation state, not a confederation of sovereign states. Marshall envisioned a nation that prized the sanctity of contract above any temporary notion of social justice. He despised Jefferson’s vision of a lightly governed, inward-looking, agriculturally based loose association of proud commonwealths like Virginia and Pennsylvania. We now live in Marshall’s America, not Jefferson’s.

Jefferson struck back at the judiciary in 1804 by convincing his partisans in the House of Representatives to impeach Supreme Court Justice Samuel Chase, a signer of the Declaration of Independence who had become an obnoxious and outspoken anti-democrat from the bench. The question was this: Can you impeach a justice for what you regard as his nasty politics. The U.S. Senate chose not to convict Chase.

Jefferson seems to have sensed that he was playing a dangerous game, one that could erode constitutional stability. In the aftermath, he admitted that such impeachments were a bungling enterprise and he desisted from meddling with the independence of the judiciary thereafter. Jefferson appointed three justices to the Supreme Court. Every one of them wound up disappointing him.

The last attempt to pack the court was in 1937, when Franklin Roosevelt, just re-elected in a landslide, attempt to increase the number of justices from nine to 15 so that his emergency New Deal legislation would not be struck down by judicial conservatives any longer. Congress balked. Even Democrats in Congress, including senators and representatives devoted to the New Deal, refused to give Roosevelt such unprecedented power. He was frustrated, but this is how our system is supposed to work.

What we should want is a justice with a first-rate mind, great analytical powers, an unusually high capacity for legal discernment and nuance, a deep grounding in the history of law, the history of natural rights and the history of constitutions, particularly “our” Constitution. What we want is someone who knows a great deal about original intent but is not a slave to original intent (that was then, this is now, and by the way “that” constitution was written to protect slavery, so how “original” do we really wish to be?) We want someone who prizes a strict protection of human rights over government efficiency or economic prosperity. What you most want on a court is a few crabby civil libertarians who understand that the whole genius of America is to leave as many people alone as possible as often and emphatically as possible.

So why are we already locked into an angry national cage match on Roe V. Wade, the abortion decision issued by the Supreme Court in 1973?

Both parties are behaving in a deplorable manner: The Republicans want the nominee to pledge to overturn Roe V. Wade. The Democrats insist that he or she hint that she will leave current abortion law in place.

Not only is this the wrong basis on which to give someone life tenure, but it trivializes the third branch of our national government into a public policy club consisting of nine unelected and largely unaccountable persons. The great questions of a great nation should not be decided by nine unelected individuals.

They are men and women like other men and women, capable of nobility and capable of pettiness, vengefulness, ignorance, prejudice, bigotry, pride and self-aggrandizement. They have good days and bad. They see some issues with great clarity and others with the kind of muddled gut reactions that characterize all of the rest of us.

The future of this country should be in the hands of an infinitely wider body than the Supreme Court. Our current approach is not much different from letting the starting lineup of the Chicago Cubs determine the future of the United States.

I believe the nomination process should be taken out of the hands of American presidents, who misunderstand and misuse their appointment power for narrow and often temporary purposes, and put it instead into the hands of a severely nonpartisan think tank of constitutional experts who look for raw judicial talent irrespective of the person’s political views. Once the foundation designated someone of outstanding merit, the Senate would confirm or deny with a straight up and down vote.

America is awash in men and women who would be outstanding Supreme Court justices. But the very last questions we should want to ask them is where they stand on Roe V. Wade, or the Affordable Care Act, or affirmative action.

TOM DAVIES: The Verdict — We’re No. 1!

Fourth of July celebrations are loud. Not all remember how the celebration came about. Before it became known simply as the Fourth of July, the holiday was called Independence Day.

In 1775, people in New England began fighting the British for their independence. On July 2, 1776, the Congress secretly voted for independence from Great Britain. Two days later, on July 4, 1776, the final wording of the Declaration of Independence was approved, and the document was published. The first public reading of the Declaration of Independence was July 8, 1776. Delegates began to sign the declaration on Aug. 2, 1776.

The first description of how Independence Day would be celebrated was in a letter from John Adams to his wife, Abigail, on July 3, 1776. He described “pomp and parade, with shows, games, sports, guns, bells, bonfires and illuminations” throughout the United States. However, the term “Independence Day” was not used until 1791.

Thomas Jefferson and John Adams, both signers of the Declaration of Independence and presidents of the United States, died on July 4, 1826 — exactly 50 years after the adoption of the declaration. It is also important to note that Native Americans already lived in the country, and each tribe had its own nation and government prior to the European settlers.

I placed the history of the Native Americans at the time to eliminate any ignorance or doubt that this was their country, and through various means, white settlers who founded our nation deprived them of their lands and assets.

We celebrate Independence Day to show our reverence for the day we gained freedom. It is also the way of showing patriotic feelings you have for this nation.

For years, we have enjoyed freedoms of thought, religion and speech. We have a government with checks and balances, and it has worked — sometimes very well, sometimes not so good.

Right now, we have two politicians in particular who are degrading everything this country stands for at the very time we should be celebrating.

Rep. Trey Gowdy, R-S.C., has announced he is not running for re-election and has indicated a desire to serve on the federal bench. This is the man who has attacked Deputy Attorney General Rod Rosenstein and FBI director Christopher Wray. Gowdy,  who chaired a committee that spent 2½ years and $8 million on investigating Hillary Clinton in connection with Benghazi, is heard to complain and demand that the 12-month-old Mueller investigation be ended at once. He forgets his work took much longer, cost much more … and came up with absolutely nothing.

Rep. Jim Jordan, R-Ohio, was a two-time NCAA Division I wrestling champion. He, too, has seized the bully pulpit. Last week in Congress, he called Rosenstein a liar during his sworn testimony.

Jordan and Gowdy make good tag-team partners when on camera. When it comes to facts, however, they are like wolves howling in the wind.

These two pit bulls like to flex their muscles when they run the committees and carry on in front of the cameras. But the fact is, neither of them has a clue what Mueller has or has not discovered. To ask the attorney general and or director of the FBI to turn over evidence to their committee is not only wrong — it is not supported in the law.

Why, you may ask, do I mix Independence Day with Gowdy, Jordan and the law?

It is because we have a separation of powers, thanks to the Founding Fathers, but it is under attack. Our founders worried about protecting the nation and outlined a structure to keep it safe in our Constitution — and it is the Constitution that will govern our future.

Avoid bullies, enjoy Independence Day, and speak your mind when you see a wrong. Be glad you live in this country where we can agree to disagree, at least sometimes. Amen.