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Should Justice Be Judicial?

Ray Blain is a retired pediatrician and medical consultant, and author of a forthcoming autobiography Becoming A Doctor; My Dreams and Nightmares.

Not long ago, Donald Trump awarded the Medal of Freedom to Edwin Meese who was Ronald Regan administration's Attorney General from February 25, 1985 until he resigned in July 1988 in the midst of scandals alleging corruption. At this time there are members of Congress, and the public, requesting that the present Attorney General, William Barr, also resign for similar reasons.

Whether or not either or both officials are guilty of the alleged offenses remains for the court system or Congress to decide. What has become clear, at least to me, is that the Department of Justice may be located in the wrong branch of our government. With your patience I will elaborate.

The common belief has been that the Attorney General is the people's lawyer. But under the present structure and system, he is nominated by a partisan president; confirmed by a Senate that is usually partisan, and yet expected to perform in a non-partisan fashion.

There are several myths about the process, office and duties that have been accepted until now. One is that Congress will have oversight of the Attorney General's actions through Congressional powers of oversight contained in the Constitution. Another myth is that the federal agencies under his/her control such as federal marshals, FBI agents, CIA operatives, etc. will always act in a non-partisan manner regardless of what political persuasion is in power in the Executive or Legislative Branches.

However, history since at least 1985, has shown these assumptions to be flawed. Some Attorney Generals are suspected to have been involved in corruption, cover-ups, and obstruction of justice. As Attorneys in General, they have at the same time had the power to block, hide and promote misdemeanors, crimes, corruption and false interpretations of the Constitution when members of the Executive and Legislative Branches delay or refuse to investigate, or expose, their misdeeds.

Such proceedings have been too often delayed or blocked by slow court decisions. Currently enforcement of court decisions depend on legal forces in the Executive Branch to implement those rulings using powers invested in the Department of Justice, not the Judiciary Branch. The enactment of court rulings can be delayed or ignored under the present system.

If the Attorney General and the Department of Justice are supposed to be of the people, by the people, and for the people in as non-partisan a manner as is ethically, human and politically possible, it would seem to me that the structure and responsibility of this department, and all the people who serve in it, must be changed to a structure that is as non-political as possible, How can this be done?





I would propose the following changes:
Move the Department of Justice from the Executive to the Judicial Branch of government. Although I personally disagree with some of the Supreme Court's past decisions, and that this branch can be partisan if a political persuasion stays in power too long, it's history shows that it has been the least partisan branch in our country's history. The Attorney General and his department have to be somewhere in our governmental structure, and the Judicial Branch has been the most objective, although not perfect.

This move would change investigative and enforcement power and supervision out of the biased Presidency and Congress.

The enforcement of court decisions would be moved to the branch making these decisions more likely to be rapidly and effectively done.

There would be much less motivation toward corruption in the Executive and Representative Branches.

How could this be done?

  1. It would require a Constitutional amendment to make the move and necessary changes resulting from the move.
  2. The Attorney General and federal court judges would be nominated by a committee established by the Supreme Court. To encourage non-partisanship, each of these these nominees would have to be approved by a two/thirds vote in both the House and Senate. Terms would be ten years with possible, but not automatic, renewal.
  3. The Supreme Court nominating committee would be required to recommend judiciary reappointments every ten years, timing based on original year of appointment approval for every federal judge. This will help prevent most corruption and hopefully, partisanship. This would require a legal clarification of the difference between partisan and judicial philosophy, still allowing “judicial and congressional oversight.
  4. Candidates and judicial appointees campaigning or in any way seeking appointment would be forbidden.
  5. Removal of any federal judge or the Attorney General would still be subject to impeachment proceedings in Congress. Other Justice Department personnel removals would be subject to retirement, approved resignations, or actions by superiors subject to review by the Supreme Court or its designees to guard against bias and reprisals.

Is this system perfect?
Only time will tell but I believe it would be far superior and less corrupt than the partisan political system we have witnessed several times since 1985.

The Department of Justice, the Attorney General, and the Presidential Pardoning Power have been misused to engage in and promote misconduct, and obstruction of discovery and oversight. This has led to deeds that might have been prevented, discovered, stopped or punished had the Justice Department really been the peoples' Department of Justice.

~ Raymond Leo Blain
































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