Question on U.S. Judiciary Structure

[J.K. Gregg]

Who do you believe the framers left the establishment of inferior courts up to the congress and not to the Supreme Court? Is there a conflict of interest in allowing the judiciary to expand itself? I suppose congress, in its power of the purse, would need to approve such expansion, but why at its own behest, and not of the Supreme Court's?

[Reidy]

My guess would be that this is a legislative function so they left it to the legislature. In addition, deciding how many courts to have would put judges in conflict of interest. They'd want to influence their own workloads and the size of their administrative empires.

[Selene]

J.K:

I assume you meant "why," rather than "who." I also concur with Reidy that it would appear to follow the overall paradigm of separation of powers. Moreover, the "people's house," being the purse and repository of the statutory power dispenser in control of the scope of the judiciary follows logically.

As was noted in this History of the Federal Judiciary {http://www.fjc.gov/history/home.nsf/page/talking_co_tp.html}:

The framers of the Constitution had no practical model of a court to serve the whole nation. The only court established under the Articles of Confederation, which served as the first national government, was the Court of Appeals in Cases of Captures. This body had very limited jurisdiction; it dealt only with the capture of enemy ships and had no enforcement powers. The proper role of an independent, national judiciary was a largely unexplored topic when the Federal Convention convened.

Early in the Convention, delegates agreed that there would be a single supreme court and one or more inferior courts, but that decision about inferior courts was soon reversed.

Appointment—Some delegates, like James Wilson of Pennsylvania, recommended appointment by the executive as a protection against the intrigues associated with a large legislature. Many more supported appointment by the legislature or by the Senate alone. John Rutledge of South Carolina, who later served as a Supreme Court justice, feared that concentrating the appointment power in the hands of a single executive would lead to monarchy. Roger Sherman of Connecticut thought appointment by the Senate would ensure that judges were drawn from every part of the country. Madison feared that many members of the full Congress would not have the experience to assess the qualifications for a judge, and he initially preferred appointment by the more exclusive membership of the Senate.

Nathaniel Gorham, a delegate from Massachusetts, suggested the mode of judicial appointment that his state had used since the colonial period: nomination by the executive and approval by the smaller branch of the legislature.

Once the convention decided that the Senate would represent states equally, Madison suggested that the President be authorized to appoint judges but that the Senate be given the right to veto the appointment by a vote of two-thirds of the members.

Only in the final two weeks of the convention did the delegates agree that federal judges, like ambassadors and other appointed officers, would be appointed by the President with the advice and consent of the Senate.

[syrakusos]

Thanks, Adam! Once again, yet again, I am sorry that we cannot "Like" posts. That was very helpful. Of course,you are a court officer are you not? My only class in Constitutional Law was first-year: CJT 162. So, although I put a lot of myself into it, it was not very demanding. As you note, the colonial experience did not suggest a Federal judiciary. In fact, the entire history of courts was hugely not helpful.

Consider that in Locke's Second Treatise, the three branches of government are Legistlative, Executive, and Diplomatic. The courts are not a function of government. Courts are organic to the community. Among the function of the court is to serve as a safeguard against the government: the king's men must obtain a warrant to do what the king as ordered.

The colonial leaders read their ancient history in Greek and Latin. In Athens, a jury was drawn by lot from the Assembly. In Rome, we think easily of the Senate, but it was only the highest of many commuinity assemblies, some of whose jurisdictions overlapped. The Senate was made up of landholders. Balancing them were popular councils of commoners, at the apex of which were the tribunes, Again, as in Athens, the assembly heard trials, or juries were drawn from these bodies, or the magistrate or tribune (eventually emperor) could be called to judge. (Consider the hapless Pontius Pilate when the Jewish assemblies were unwilling to act.)

As you note, there was no model.

J. K.. Gregg's queston does suggest other means to create, empower, and organize the judiciary.

As an aside as it reflects "law and order" here and now, the coroner was originally a crown appointed investigator whose task was to determine if a body found on the road was Norman or Saxon. If Norman, a search was conducted. If Saxon, it was someone else's problem.

[J.K. Gregg]

Thanks for all of your responses and sorry for the typo in my post. I ask because I have taken on a personal project of formulating a fictional constitution of a objectively proper government. I had originally left the expansion of inferior courts up to the supreme court, but realize the error in this.

To advance the conversation a bit: what are your thoughts on term limits on judges?

[Selene]

Thanks for all of your responses and sorry for the typo in my post. I ask because I have taken on a personal project of formulating a fictional constitution of a objectively proper government. I had originally left the expansion of inferior courts up to the supreme court, but realize the error in this.

To advance the conversation a bit: what are your thoughts on term limits on judges?

J.K.

I am undecided on this. More importantly than term limits is what the criteria should be to become a Judge. I would limit the percentage of the Judiciary to less than 33% composition of practicing attorneys for starters.

I might even be persuaded to exclude practicing attorneys from the judiciary, but that is a reaction to the current status quo.

Start with the criteria for a Judge. Heinlein had a "fair witness" concept which was great. A person who trained to be able to testify as to the descriptive truth making no formal conclusions.

Fair Witness

is a fictional profession invented for the novel. A Fair Witness is an individual trained to observe events and report exactly what he or she sees and hears, making no extrapolations or assumptions. An

eidetic memory

is a prerequisite for the job, although this may be attainable with suitable training.

In Heinlein's society, a Fair Witness is a highly reputable source of information. By custom, a Fair Witness acting professionally, generally wearing distinctive white robes, is never addressed directly, and is never acknowledged by anyone present.

The character

Jubal Harshaw

employs a Fair Witness, Anne, as one of his secretaries. Unlike the other secretaries, she does not use dictation equipment when Jubal speaks, and can keep track of several works at once, despite Harshaw's frequent switching among them.

Fair Witnesses are

prohibited

from drawing conclusions about what they observe. As a demonstration, Harshaw asks Anne to describe the color of a house in the distance. She responds, "It's white on this side"; whereupon Harshaw explains that she would not assume knowledge of the color of the other sides of the house without being able to see them. Furthermore, after observing another side of the house would not then assume that any previously seen side was still the same color as last reported, even if only minutes before.

When Ben Caxton decides to do something that might result in

litigation

—namely accusing a government official of substituting an actor for Valentine Michael Smith in a televised interview—he hires a highly respected Witness, James Oliver Cavendish, to record everything he sees, and to ensure that Ben is not accused of slander. They visit the alleged Man From Mars in his hospital suite in the hope of determining whether he is actually Smith or the actor who had apparently impersonated him the night before. Once Ben and the fair witness have left, and the Mr. Cavendish's Fair Witness persona goes off duty, Mr. Cavendish shows a fundamental problem with a human Fair Witness by mentioning that Ben should have looked for telltale

calluses

on the supposed Smith's feet; He then realized his mistake when Ben immediately wants to go back, therefore he states that he can no longer serve as a Fair Witness for this case and Ben would need to procure another Fair Witness. Frustrated by the professional ethics of the Fair Witness profession, Ben must make other plans to prove the identity of Mr. Smith.

Adam