WILL TRUMP “DRAIN THE SWAMP”, OR WILL THE SWAMP SWALLOW ALL OF US?

…Trump’s idea of “Draining the Swamp”

 

A truly independent judiciary is important for every democracy.

 

I just saw a Pew Research Poll that said that 84% of the Republicans that were asked, are in approval of Donald Trump’s first weeks in office.  That's versus only 8% of the Democrats asked.

 

What is so glaring about that is how divided the country is today and what that means to a functioning. small “d” democratic nation.

 

Remember, our forefathers came up with the concept for an American democracy with the Idea that each of the three separate houses of government were meant to be a check on each of the other two houses.

 

But, as of today, the nation is so divided, with one political party running both houses in Congress and the executive branch, plus the fact that these two major parties no longer believe in the idea of “compromise”, to get the people’s business done, where do we go from here?

 

It is now time to realize that this is the exact reason why a truly independent judiciary is so important.

 

As an example, President Trump’s executive order that suspended travel for those who hail from seven primarily Muslim countries, it quickly landed in the federal courts. Many of those in the judiciary disagreed with Trump’s order as unconstitutional, and several federal judges, both Democratic and Republican appointees, had ordered an immediate stop to its implementation.  The US Court of Appeals for the 9th Circuit then handed down a sweeping judicial ruling that halted enforcement of the ban.  When that occurred, the president tweeted his impatience with the courts questioning of his authority.

 

This is exactly what an independent judiciary was meant to do when either of the other two houses of government go too far and start doing things that go against the US Constitution.

 

The reality is that when the two major political parties become so divided that each side starts taking on their own version of authoritarianism, that’s exactly when it’s time for those non-partisan judges to be there to act as referees between the two houses and the two parties.

 

One of the reasons that a democracy can backslide into authoritarianism, is if a country has been rocked by economic and political shocks.  Then the citizens often seek strong leaders who promise to rescue them.  And many times, the population allows those they have selected as leaders to use their populist popularity to increase their personal power.

 

Today, that is occurring with some here in the US, but this time it is because of today’s threats of terrorism.  That is when these populists crowds start asking their powerful leader to do “whatever it takes to protect them”.

 

Economic threats such as rapid, trade-induced issues can also have the same results.

 

But today, it’s not just that Trump’s authoritarian populism is rising across the country.  The problem today is that this strong leaders is being forced against his will to move slowly in a democracy that favors deliberation, consensus and power that is spread amongst many stakeholders.  Some strong leaders might try to eliminate some or all of those checks created by an independent judiciary on their authority to take action.  However, the loosening of those checks could easily put at risk, a democracy’s freedom and its liberty and its civil rights.

 

The framers of the US Constitution were very smart as they feared the consequences that come with populist opinion. Many democratic theorists point to these inclinations as a reason that judicial independence from the elected branches of government is so extremely important.  They argue that the courts are mostly immune from short-term shifts of popular opinion, and that the judiciary can block the executives if they try to grab too much power.

 

The American Journal of Political Science had performed a study and they found that 163 nations from 1960 to 2000 had faced threats to their democracy from two main sources.  First, was their slow growth and economic change.  The second threat was from rival countries. But those nations that had an independent judiciary were more likely to remain democracies, even when times were troubled.

 

Being a democracy did not require the existence of that independent judiciary, but independent judiciaries did help prevent democracies from backsliding into authoritarianism.

 

The study showed that when countries had had independent judiciaries for at least two years, they rarely succumbed to what is referred to as “creeping authoritarianism”.  The fear is, that is where the US could be sitting today with a leader like Donald J. Trump.

 

The courts’ ability to keep their independence rests on three key factors

 

·       First, the public must believe that the courts are legitimate.

 

·       Second, political elites’ must have respect for their authority.

 

·       And finally, there must be healthy political competition within the democracy.

 

So, what are today’s threats to the US judiciary’s independence?

 

Well, this new administration is not well ensconced within the normal two party system. There are few signs that this administration really cares whether the current two political parties will be able to compete freely and fairly in future elections.  Or has the current system been permanently tainted?  Such an attitude breaks down the idea that the courts must be protected as an insurance policy for all political sides.

 

Trump’s attacks on “so-called judges” is an attempt to undermine the courts’ overall legitimacy.  That happened before in the US, when President Andrew Jackson famously taunted and defied the US Supreme Court's Chief Justice, John Marshall.   President Jackson had stated: “John Marshall has made his decision; now let him try to enforce it!”

 

But the decision that President Jackson had referred to, that was almost 200 years ago, at a different time in our politics.  Fortunately, the potential for a crisis totally fizzled out without a direct showdown between the two branches.

 

Therefore, it has been proven that judicial independence is not only good for a democracy, it is imperative in times like today. Legitimacy and support from political leaders helps maintain that independence.  Attacks from political elites can seriously endanger threats to the key components of a long-term democracy.

 

And political elites such as a billionaire political leader with a cabinet that is filled with other elite billionaires, that could be a serious threat that could challenge the independence of the current American judiciary. 

 

 

In other words, instead of “draining the swamp” as Donald J. Trump has promised, the so called “swamp” could bring down both the new president and the whole nation as we know it.

 

So, I’m just sayin……….

 

Copyright G.Ater  2017