A game of three-judge-panels is no route to actual justice

It’s probably still a little farfetched to say that watching the nation’s judicial system appoint judges and justices has become like a board game or a smarmy television game show in its entertainment value. 

Like, maybe this, as I sketch out here:

“Tune in every Friday afternoon for another round of the nation's favorite political game show, "Pick Your Panel!”

And watch the men and women you picked at the polls climb their way up through the Judicial branch, picking the panel of pols they believe most likely to rule in their favor!

But better be careful how you choose your ringer; if you're not careful, that judge appointed by your party that you've presumed to be a right winger might actually turn out to be a left leaner and may send you back to square one. Or worse, send you directly to jail!

But there's more to this game than brute political manipulation of the rule of law. There's strategy. Collect enough split-decisions and you may get a chance to plea your case before the Supreme Court, where winner takes all! But BE CAREFUL of the Roaming Roberts!  As Chief Justice he also gets to be the Swing Voter; "tie-breaker, majority maker", roaming left, then right, on the bench, and where he's stops nobody knows!

And Now, just in time for Christmas, the game you love to watch is also available in a "play at home version"! It makes a great icebreaker when played with old friends and family you haven't spoken to in a long time. And, in no time at all, you'll likely never want to speak to them again!

Order now and have it under the tree for Christmas morning. But hurry, games are moving fast, and orders are flying off the bench! Free gift wrapping for the first 100 orders, available in either Red or Blue!”

But it’s perhaps not too outrageous to say the federal judiciary has become politically predictable.

There used to at least be a myth and presumption that the courts were independent, unbiased, and free from politicization. Today, however, few even seem to bother to bow before this presumption. Rather now, the presumption is that a court ruling is dependent on the political affiliation of the panel's or court's make-up versus dependent solely on the rule of law. It's gotten so much so that it has become common practice for the political affiliation of each judge or justice to be reported in each news story.

The clear presupposition now is that Democrat-appointed judges will find in favor of the DNC position, and GOP-appointed ones will find in favor of the RNC position.

The DNC, as is its usual tendency, took judge-shopping to the extreme, and the back-and-forth appeal ping-pong rulings witnessed during the Trump administration revealed to just what dizzying heights Democrats are willing to take their judicial cynicism.

Therefore, it should come as no surprise, that in politics where, “what goes around comes around,” that the Biden administration is receiving healthy doses of the same kind of medicine it dished out for its vaccine mandates. And now, with that going on, it's forced itself in turn, to do its own last-minute Christmas shopping. Here's a story from the New York Times:

A federal appeals panel on Friday reinstated a Biden administration rule requiring that many companies mandate their workers be vaccinated against the coronavirus or face weekly testing.

The decision, by a split three-judge panel of the 6th U.S. Circuit Court of Appeals, in Cincinnati, overturned a ruling by its counterpart in New Orleans, the 5th Circuit, that had blocked the rule last month.

Issued by the Occupational Safety and Health Administration, the rule is expected to make its way to the Supreme Court. 

The three-judge panels, valued for their efficiencies, received little attention until 2016, but have since shown themselves to be wholly unsuitable to the current political situation, or to maintaining the non-political appearance of the courts.

Their outcomes have become almost always predictable and punctuated with the heightened appearance of partisanship. There is near certainty that the verdict will be appealed to the full bench and that the political charge of the case will demand that the full Supreme Court take it. 

Parties to the controversy are getting too many bites at the apple and would probably be less likely to file a petition so quickly if the three-judge panel wasn't an option. These panels intended for efficiency instead now undermine both judicial efficiency and integrity.

This hyper-litigated method of governance, where every degree of controversy must necessarily run-up to SCOTUS for final resolution is not good for the courts, and it’s a losing game for the Republic.

Image: Pixabay / Pixabay License

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