Making determinations based on an impartial perspective lies and is the very foundation of the American judicial system. After living under the rule of King George the III, in which justice was at the whim of a monarch, the Founding Fathers embedded in our constitution the notions of “due process” and an “impartial jury.” The intended ramifications of these and other doctrines were to make sure that those in a public position of upholding justice were agents of the public good. However, when those individuals’ agency is compromised by political pressure, then the system of impartial justice is undermined and a valuable check and balance is lost. In order to preserve justice and important checks and balances, the public must ensure that criminal prosecutors do not have partisan agendas. To accomplish this, reform may be needed, such as decentralizing authority at the Department of Justice and eliminating elections as a mechanism for choosing prosecutors.
The most recent controversy over this issue erupted over the supposed impropriety which occurred at the Justice Department in 2006. Allegedly, eight federal prosecutors were relieved of duty after refusing to initiate politically driven prosecution. The prosecutors claimed that they received “improper telephone calls from GOP lawmakers or their aides, and have alleged threats of retaliation by a Justice Department official” when they failed to take these actions (Eggen 2007). Although the Justice Department claimed it was based on performance issues, the current evidence suggests that they were released for not following marching orders. Furthermore, the political influence extended into hiring practices as well. According to a recent report, “Justice Department officials over the last six years illegally used ‘political or ideological’ factors to hire new lawyers into an elite recruitment program, tapping law school graduates with conservative credentials over those with liberal-sounding resumes” (Lichtblau 2008). In other words, the candidates were not selected entirely on merit, but also in reference to having the “proper” political affiliation. This example provides the consequences of the politicization of the judiciary branch.
In a democratic system, those who are politically appointed or elected are placed in a difficult limbo between public sentiment and the law. The essence of a democracy is that the majority gets to decide what the laws are, albeit indirectly through representation. This makes laws inherently political (Estrich 1998, 1). However, those attempting to enforce the law are supposed to do so in a non-political manner. Therefore, prosecutors who are elected or appointed are products of the political process trying to uphold the results of the political process in a non-political way (ibid). This seemingly impossible scenario forces the question to be asked: can anyone in that position be expected to make decisions without reference to politics? Indeed, the proposition that a political creature could entirely divest themselves from political pressure seems like a contradiction of terms. Therefore, the solution would seem to be removing the politics from the appointment or election of these individuals.
One mechanism that leads to external political pressures being applied in the Department of Justice is the centralization of control and the lack of prosecutorial autonomy. Since all staffing decisions is done centrally by individuals who are politically appointed, it “enables the Attorney General and other high-ranking DOJ officials to enforce prosecutorial decisions that promote partisan objectives, either out of sympathy for the President’s interests or in direct response to White House importuning” (Green 2008). In other words, because all control comes from a central location, it is very difficult for any of the decisions that are made to be made without the interference of the political arm of the organization. As green comments, “The balance in federal law enforcement has tipped in the direction of too little prosecutorial independence and too much centralized control” (Green 2008). This may help explain the problems that emerged at the Department of Justice recently; because there was too much control located centrally, the hiring and firing practices could easily be manipulated to fit a political agenda.
If there is no certainty that the individuals who are prosecuting crimes are not doing so on the merits of the case, but rather as a result of political pressure, then there can be no certainty about our political process. For example, the eight federal judges who were released were instructed to start investigations into Democrats, and thereby tarnish those individuals’ political future. If it becomes clear that prosecutors are simply acting on political orders for investigations such as this, then the finding, results, and punishments that come about will only be palatable for those who agree with the results politically. The danger becomes that the criminal justice system has become nothing more than a version of mob rule, where people are not convicted because they have done something wrong, but rather because they happen to sit on the wrong side of the political fence at that moment (Johnson 2007).
Furthermore, if the judiciary is simply operating under instructions from the executive branch, then an important check and balance will have been lost in government. As the founding father conceived of it, checks and balances in government exist in order to prevent any faction from seizing too much governmental control. In other words, because power was distributed between several different branches of government, it would be more difficult for any particular branch of government to become supreme, and therefore, and particular faction to totally and without hesitation enact their agenda. However, if the important check of having to operate within the law is removed from the executive branch, an entirely new scope of possibilities opens up. The tension between the branches of government ensures that the best result for the public good emerges, and not for any particular interest.
In order to achieve a less politicized judiciary, it is necessary to take the politics out of their selection. Obviously, any sort of election has the potential for troubling results, as now the prosecutor must keep his constituents happy instead of enforcing the law. Unfortunately, the popular decision is not always the one that conforms to a just interpretation of the law. Furthermore, appointees should be made by some other process than by elected officials. A possible solution to this problem would be to make up a politically balanced and impartial panel that could decide on the best candidates. Additionally, increased decentralization of control and enhanced prosecutorial independence would decrease the risk that someone is merely just following orders.
Classical depictions of the figure of justice show her standing with a scale in one hand, a sword in the other while wearing a blindfold. The symbolism is clear: she will weigh the evidence impartially, without looking at who she is judging, and then deliver punishment accordingly and equally. When that blindfold is removed as a result of external political pressure, then justice is being manipulated for the benefit of particular interest. The recent scandal that seized the justice department is a perfect example: the interests of the Republican Party became more important than the interests of the American people. The Founding Fathers attempted to leave us with a system that was not subject to the whim of a king; it shouldn’t be subject to the whim of an interest.
Works Cited
- Eggen, D., & Kane, P. (2007). Gonzales: ‘Mistakes Were Made’. The Washington Post. Web.
- Estrich, S. (1998). Getting away with murder. Cambridge : Harvard University Press.
- Frieden, T. (2008).Gonzales aides politicized hirings, investigators find. Web.
- Green, B. A., & Zacharias , F. C. (2008). ‘The U.S. Attorneys Scandal’ and the allocation of prosecutorial power [Electronic version]. Ohio State Law Journal, 69(2).
- Johnson, L. (2007). Prosecutorial Independence.
- Lichtblau, E. (2008). Report sees illegal hiring practices at Justice Dept. The New York Times.