Hilton Head Island, SC – January 12, 2020
The Chapel Without Walls
Deuteronomy 19:15-21; Isaiah 1:21-26
A Sermon by John M. Miller
Text – “And I will restore your judges as at the first, and your counselors as at the beginning. Afterwards you shall be called the city of righteousness, the faithful city.” – Isaiah 1:26 (RSV)
Law is a fundamental building block of human society. Without law, we would be savages. Even with law, sometimes we act like semi-savages. No doubt that is one of the main reasons laws came into being thousands of years ago: to keep us from degenerating into self-centered savagery. An oft-used phrase to describe the most civilized nations is to say that they follow “the rule of law.” In order to survive, autocracies and dictatorships must be laws unto themselves. But with the rule of law, nations can become what nations ought to be.
Jews have always called the first five books of the Old Testament “the Torah.” The word Torah itself means “law.” Obviously most of the material in those five books is not a legal code, but some of it is. And there are many chapters, especially in Exodus, Leviticus, and Deuteronomy, which are a litany of laws with the rationale for each of those legal requirements or restrictions. For example, it is highly significant that Deuteronomy 19:15 clearly decrees, “A single witness shall not prevail against a man for any crime or for any wrong in connection with any offense that he has committed; only on the evidence of two witnesses, or of three witnesses, shall a charge be sustained.” If you watch Law and Order, you know that both the prosecution and the defense try to get as many witnesses as possible to make their case stronger. This legal principle is at least three thousand years old.
But that important legal distinction isn’t why I selected the reading from Deuteronomy. I chose it because after talking about the necessity of multiple witnesses in a criminal proceeding, it says this: “If a malicious witness rises against a man to accuse him of wrongdoing, then both parties to the dispute shall appear before the Lord, before the priests and the judges who are in office in those days; the judges shall inquire diligently, and if the witness is a false witness and has accused his brother falsely, then you shall do to him as he meant to do to his brother, so you shall purge the evil from the midst of you” (Deut. 19:16-19).
There are three things we may note from these verses. First, false witness is declared to be utterly unacceptable. This principle is so important that one of the Ten Commandments is, “You shall not bear false witness.” The rule of law cannot maintain order if false witness is ever allowed in a law court. However, Deuteronomy 19:21 is a very unfortunate verse which should never have made it into the Bible, but did. It says of false witnesses, “Your eye shall not pity; it shall be life for life, eye for eye, tooth for tooth….” As Tevye wisely observed in Fiddler and the Roof regarding a literal following of that draconian dictate, “And then the whole world will be blind and toothless.” What a marvelous, mischievous man is the milkman of Anatevka!
Secondly, these verses from Deuteronomy tell us that as early as 32 centuries ago, and probably even before that, the Israelite judicial system had judges. We frequently use the term “the rule of law.” These words imply that nation-states which seek to establish justice and equity are obliged to have judges to adjudicate legal disputes. In the best of all possible worlds, judges would not be necessary, because disputes would be reconciled among the contending parties outside a courtroom. But this isn’t the best of all possible worlds, nor shall it ever be, and so judges are essential to the proper exercise of the rule of law.
Thirdly, and most importantly, law and justice are to be administered before God. “Both parties to the dispute shall appear before the Lord, before the priests and judges who are in office in those days” (v. 17). Thus when a witness is sworn in for testimony in court, the question, as we all know, is, “Do you swear to tell the truth, the whole truth, and nothing but the truth, so help you God?” Justice is a theological as well as legal issue. Law (Torah) exists because of God, says the Bible. We need judges who judge with equity and fairness, who make their rulings based on valid legal precedents, in order to translate the laws of God into the people’s laws.
The prophet Isaiah lived in Jerusalem about 750 BCE. He was incensed by judicial miscarriages of justice. Judges were taking bribes, and the law was regularly being subverted. Thus Isaiah quoted God as saying, “I will restore your judges as at the first, and your counselors at the beginning. Afterward you shall be called the city of righteousness, the faithful city” (Isa. 1:26). There can be no clearer illustration that judges and justice are theological issues.
But how should our judges be selected? Who should control the process? Back in biblical times, the religious establishment named the judges. In my opinion, that is a very bad idea. Religion disrupts its own sphere of influence so often that it certainly shouldn’t also insert itself into the judicial process. Under monarchies, the kings named the judges. That was acceptable, provided the monarchs were fair-minded. In democracies, judges are either elected by the people or appointed by the legislative and/or executive branches of government.
From now on, I shall be talking about federal judges, and particularly about US Supreme Court justices, not about state, county, or local judges. And the question which prompts this sermon is this: Have our judges become too politicized?
Let us quickly review how all federal judges attain their offices. Whenever there are vacancies, the Senate Judiciary Committee looks over its list of acceptable candidates and recommends names to the whole Senate for confirmation. This sounds well and good. However, the Senate always is controlled by one political party or the other, and therein lies the problem. The administration of justice ought to be both non-partisan and bi-partisan, but sadly too often it isn’t. When the Judiciary Committee and the Senate have a majority of Democrats, attorneys or judges who are known to be Democrats are usually the ones nominated, and vice versa for Republicans. But what does genuine justice have to do with political partisanship? Shouldn’t the law be supra-political or extra-political? And if legal decisions are determined ultimately by politics rather than by law, is not the legal system corrupted by that very reality? All judges should always declare to both parties, along with Shakespeare, “A plague on both your houses!”
Occasionally the naming of federal district court judges creates a political brouhaha in the Senate. Almost every time a Supreme Court justice is proposed, however, there is usually a growing level of rancor in the process. In the past fifty years, rarely does any Supreme Court nominee sail through the Senate without very virile and vocal opposition. Some Senators from the “other party” (whichever one that is) attempt to scuttle the candidates in any way they can. If anyone aspires to the judicial bench, for the good of the body politic, she or he should probably never engage in any overt or even covert political activity, simply to make the nomination process as nonpartisan as possible. Nominees should be chosen or rejected on the basis of their judicial experience and record, not their politics.
Occasionally Supreme Court nominees suggested by presidents are rejected. In 1987 President Reagan sent Robert Bork’s name to the Senate for approval. By a 58-42 vote, he was turned down. His rejection was largely for political, not legal, considerations. In 2016, Senate Majority Leader Mitch McConnell refused to consider the nomination of President Obama’s nominee to the Supreme Court until after the presidential election, which occurred nearly a year later. Early in 2017, the Senate then ignored that nominee and instead voted into office President Trump’s nominee, Neil Gorsuch. It was a close vote. Later, in a rancorous, politicized three-ring circus, by an extremely close ballot, they voted Brett Kavanaugh onto the high court.
Two extremely important Supreme Court decisions in the past twenty years have gravely undermined the rule of law in this country. They are Citizens United vs. Federal Election Commission in March of 2010 and Bush vs. Gore in December of 2000. In Citizens United, the Supreme Court, under the determined leadership of Chief Justice John Roberts, took a fairly narrow case and turned it into an enormously precedent-setting major decision. You may recall that in 2008 a group had funded a 90-minute video which showed Hillary Clinton in an intentionally bad light. The McCain-Feingold campaign finance law prohibited corporations from running television commercials for or against any presidential candidates for thirty days before primaries. A group called Citizens United challenged that part of the law.
From that relatively small issue, Chief Justice Roberts deliberately expanded the legal discussion to ask whether there were any monetary limits for individuals, corporations, or political groups to express their political opinions in campaigns. Rushing the deliberations, in March of 2010, more than seven months prior to the November federal election, the court declared, 5-4, that there are no limits. They further ruled that in contributions to political campaigns, corporations are the equivalent of “persons,” and that therefore they can contribute any amount to any candidate they choose. In the Congressional election of 2010, control of the Congress switched from one party to the other party, probably because the winning party far outspent the losing party. A one-vote majority of the Supreme Court said that the free speech guaranteed by the Constitution prohibits any limits by anyone on political contributions.
That decision was a disaster for a democracy. What it means is that elections may and likely shall be purchased by the biggest donors, possibly including billionaires running for the presidency. What happened in 2010 shall become even clearer when the dust (or should we say dirt?) will have settled after November 3rd of 2020. This campaign shall have elicited by far the greatest total in contributions of any election in our history, in both relative and actual dollars. It is estimated that far more than a billion dollars shall go into the presidential campaign alone, to say nothing of the other 535 Senate and House races. Congress wrangles for months over expenditures over a hundred million dollars to help the poor, but it is perfectly acceptable to spend many hundreds of millions of dollars to get themselves elected to Congress.
It is impossible accurately to calculate how badly this legal decision corrupts our system. In his written opinion on the Citizens United case, Anthony Kennedy, the so-called swing vote on the court, said that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” That is literally a breathtaking --- and an extremely alarming --- judicial finding. How could anyone, let along a justice of the United States Supreme Court, come to such a cavalier and illogical conclusion is beyond comprehension. It is true that money in itself does not automatically corrupt elections, but it is ludicrously false to imply it could or would never corrupt them.
Far worse, however, was the Bush vs. Gore decision, in which Justice Kennedy also voted with the 5-4 majority. No one can forget what happened in the Florida presidential election in November of 2000. Legal precedent has long determined that election disputes should be decided by courts within the geographical location of the dispute. Since the problem was in Florida, and particularly in a few counties of Florida, the Florida Supreme Court should have decided the dispute. They did, and they, a majority of whom were Democrats, it should be noted, found in favor of Senator Gore. But the US Supreme Court insisted that they should decide the case. After only a few days of deliberation, they, five of whom had been nominated to the court by Republican presidents, found in favor of Governor Bush, and George W. Bush became President. Mr. Bush lost the popular vote by almost 600,000 votes, or 48.38% to 47.87%, but he won the Electoral College vote, courtesy of a very flawed 18th century constitutional compromise for a 21st century democracy. The one vote deemed determinative by the Supreme Court, however, decided the election by one tiny vote, five to four. A very small group of five Americans put George W. Bush in office. The Supreme Court ruled that over a hundred and five million votes cast by the American people did not matter at all. Only their voted counted.
Juries can make bad decisions. They are, after all, not attorneys who are trained in both justice and the law. Think, for example, about the O.J. Simpson decision. But attorneys, especially judges, should be fair and equitable. When they are not, democracy is threatened.
Is God a Democrat or a Republican? If biblical language is to be trusted, God is likely a monarchist, and He alone is the monarch. God no doubt is sometimes abashed by how humans operate our governments, our legal systems, and ourselves. But the Bible is certainly crystal clear about one thing: God is immensely displeased by legal, institutional, and personal injustice.
President Trump almost always reacts in angry tweets when anyone speaks out or takes actions against his decisions. In 2018 he blasted the judiciary for a perceived offense. Taking umbrage, Chief Justice Roberts rightly responded by saying, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
Whenever the House of Representatives articles of impeachment against President Trump come to the floor of the Senate (which will be determined, apparently, by Speaker Pelosi and Majority Leader McConnell), Chief Justice Roberts will be presiding at the impeachment trial. He will have the opportunity to put his own words about federal judges into fair and equitable practice. In pursuit of fairness, he might even require witnesses to testify, if he thought fairness demanded witnesses in the Senate trial. Wouldn’t that create a pretty pickle?
This country probably needs another constitutional convention to re-visit many key issues which have evolved in our history since the Constitution was first adopted in 1787. What made sense in 1787 does not necessarily make sense in 2020. One of the constitutional changes we most desperately need is a term limit, perhaps ten years, for all federal judges at every level of the judicial system. It is a scandal that, in a time when millions of people are living into their 90s, a mere nine people can hold the rest of us by our collective throat with their elderly, arthritic fingers. It also is colossally unjust.
Our legal system is probably as fair and just as any other in the large developed nations of the world. By no means are we about to collapse. But we are falling into some seriously bad habits, and we the people do not seem to be sufficiently alarmed. May God bless America, and especially in light of such a homiletic harangue as this, may God bless every American judge who sits on any judicial bench at any level of American government and jurisprudence. May there be liberty - - - and justice - - - for all!