The constitutions of the United States and Kentucky are the only things that separate us from the jungle.
Try to imagine where you might be without the U.S. Constitution.
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 haystacks, 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.
Bill Cunningham (NKyTribune file)
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 firewall 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 depends upon the independent judiciary.
When the legislature passes laws that are unconstitutional and infringe 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 U.S. Constitution. 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 have 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, and our democracy topples.
But dark clouds are gathering over our country. There is an insidious movement afoot to undermine the independence of the judiciary.
The appointments of Federal judges and Supreme Court justices have become politicalized. Both parties have abused the constitutional process by placing their own political litmus tests on judicial candidates. These attacks undermine the separation of powers and threaten our democracy.
Some members of the state legislature wish 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 checklist 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.
1. Respect. Favor the judicial candidate who shows respect for the court system, and conducts themselves like you would want a judge to act.
2. 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.
3. Do not vote for a judicial candidate who commits to doing 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.
4. 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 relevance of mentioning their political party? Do you want a political judge? There’s your candidate. If you want a fair and impartial judge, vote the other way.
5. 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 express 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.
Bill Cunningham is a retired Kentucky Supreme Court justice.
Great article
Thank you, Judge Cunningham, for giving such wise advice about voting for judges, and your comments about the need to preserve the independence of the judiciary. What you have said is precisely the reason why voters in NKY should not be casting their ballots for Joe Fischer in the November election. Mr. Fischer has promoted his ideology and his partisan connection in his campaign for the state Supreme Court; furthermore, he has no previous experience as a judge.
Thank you for speaking out on this insidious behavior. I saw a political sign on Dixie Hwy just past Blessed Sacrament Church for a Judge running and it said “CONSERVATIVE REPUBLICAN”. What other kind is there but someone who is supporting Trump and abortion. A judge is supposed to be neutral and discern the current law. This person is openly stating his position in politically so that he will receive the votes in this polarized climate. Our system does not work if our judges are taking political positions.
Bill,
Protecting the judicial branch from partisan politics is crucial to continuing our democratic experiment that started almost 250 years ago. However, that is only half the battle. The other crucial component to a fair and effective judicial branch is electing qualified, unbiased and competent judges. Currently in Kentucky, there is no system of judicial performance review that voters can use to assess how best to cast their vote. The Kentucky Bar Association tracks an internal assessment by members that is shared solely with the judge in question, but the general electorate is not privy to these comments. Voters need and deserve more insights into a judge’s performance and effectiveness come election time. Family name should not be the driving force in a judicial campaign, but rather a focus on the jurist’s capabilities and productivity. Finally, from an electoral process perspective, lawyers should not be allowed to run fund raisers for judicial candidates. We are looking for a fair, unbiased bench. Accepting donations from the lawyers that appear before them suggests an inherent conflict of interest. Only by making these changes will the Commonwealth finally be receiving the type of justice envisioned by our founders.
Thank God for your comments. I wish they could be on billboards all over this country, which has forgotten what made us so fortunate to have lived thusfar free to live based on the Constitution s and the Rule of Law, that of which you speak. I think it’s being forgotten and it saddens me. We not only have politicians pushing parties, but those already elected on so many levels seem to have no problem with outright lying to the public.
Thank you again and we can only hope for change and that those running for any office will find the integrity and common decency to remember why they are here.
In this election year, I’d love to hear what our Kenton County Circuit Court judges think are the biggest issues facing our courts – besides their own behaviors of course.
The biggest issue is that when you cannot believe the justices on the supreme court how can you believe in a country of laws?