I am not familiar with the legal system of other countries, but the U.S. system of jurisprudence is often touted as a model for others. I’m not so sure that it is such a good model.
Many of our courts’ decisions are based on the Constitution and its various amendments. But those were written decades or centuries ago and many of the issues that come before the courts today were not and could not have been anticipated that long ago. Did the forefathers mean “that a well armed militia” should have weapons for which “the right to bear arms” was written, or does that clause mean that everybody can own firearms, even ones whose sole purpose is to kill as many people as possible in the shortest amount of time? I am not arguing for or against the Second Amendment to the Constitution. I am simply saying that different judges are going to interpret the text based not on the law, but based on their own ideology.
Or take the interpretation of “separate but equal” treatment for Blacks, based I believe on the interpretation by a 19th century Supreme Court of the 4th and 14th Amendments. For many decades, that ruling held sway, until the 1954 reversal by the Brown v. Board of Education decision. Why? Different era, different court, different ideology, different interpretation?
Could our forefathers have considered the “freedom of choice,” or frozen embryos, or many of the other modern issues that they could not even dream of in the 18th and 19th centuries when they penned the Constitution? How can we apply 200 years-old thought to 21st century problems?
The most recent fiasco with Merrick Garland (Obama’s pick for the Supreme Court who did not even get his name placed forth by a Republican-controlled Senate) and then Judge Gorsuch’s nomination and subsequent acceptance after the “Nuclear Option” was exercised by the U.S. Senate, illustrate the strangeness of how judges are picked and confirmed (or not confirmed). Again, I’m not saying anything for or against Judge Gorsuch in this blog. That is not my purpose of this essay. The point is that individual judges can have such widely differing personal views, which then they apply to the interpretation of ancient documents and antiquated laws. This approach then creates the kind of battles that are fought between “conservatives” and “liberals.” But does that really have anything to do with the law? I don’t think so, especially when the person bringing his or her “baggage” of views is going to make life-or-death decisions, or affect the daily lives of millions of people.
There ought to be a better system. One in which politics does not play THE major deciding role in choosing judges. One in which judges would leave their own personal biases (to the extent possible) out of the decision-making process and politicians would get the hell out of the way of trying to influence the judiciary. A system that salutes the Constitution but understands that 21st century issues need 21st century solutions.