Does American justice suffer from the method of appointing its judges?

Does American justice suffer from the method of appointing its judges?
Does American justice suffer from the method of appointing its judges?

From our correspondent,
At New York

Closing arguments are scheduled to begin Tuesday in Donald Trump’s trial in New York. The former president appears for falsification of campaign accounts. If his trial is not over, we already know that the jury’s decision, whatever it may be, will not be accepted by half of America.

The growing polarization of political debate in the United States does not spare the country’s judicial system. Judges and prosecutors are suspected of being partisan. A distrust which mainly finds its origin in the methods of appointing magistrates, which indeed turn out to be… extremely political.

“The system is increasingly political. It’s terrible”

As with almost everything in the United States, justice is divided into two: a federal system, which handles matters relating to the entire nation; and a local system, in each state, which inherits prosecutions relating to its territory. “ At the federal level, judges and prosecutors are appointed by the President and confirmed by the Senateexplains Samuel Issacharoff, jurist and professor of constitutional law at New York University (NYU). At the level of each State, it is different: a third of the States have their magistrates elected by the population; a third gives power to the Governor to appoint magistrates, often with validation by the local Senate; and a final third works with a mixture of these two modes. »

What moral authority?

In either case, judges and prosecutors are often given a political affiliation: that of the president or governor who appointed them, or that which they displayed during their campaign to be elected. There is no school of magistrates in the United States: they are chosen from civil society, among lawyers, jurists or political figures.

It is a very political system, even more so when the magistrates are elected, notes Samuel Issacharoff. The system is even more and more political and that is a terrible thing. An independent judiciary indeed allows control over the partisan policies of each party. The secret of democracy is that majorities cannot change everything as they please. When judges become affiliated with political institutions, they lose their moral authority. »

Trump’s work

The divisive personality of Donald Trump has completely disrupted this fragile system. The only case for which he will be tried before the presidential elections on November 5 is also the least serious. This is the one for which he is currently being tried in New York. The others (attempt to overturn the 2020 results, classified documents taken when he left the White House) were postponed to a later date.

Judges who are biased because they are elected?

Judges must be very careful: they must be certain that charges against a former president would be brought against anyone elsenotes Samuel Issacharoff. We can compare the trial of Donald Trump to that carried out against former French President Sarkozy. Sarkozy may have been guilty or innocent, but the charges against him would have been brought against anyone else. As for Donald Trump, no one has been prosecuted for this before. The prosecution was led by an elected New York State prosecutor (Alvin Bragg), who campaigned precisely on the fact that he was going to find a way to prosecute Donald Trump. So this seems like a way of using the legal process for political purposes. »

Americans’ attachment to elections

Same suspicion in the other direction, where Florida judge Aileen M. Cannon, appointed in 2020 by… Donald Trump, decided to postpone a possible trial against the former president to an indefinite date (concerning classified documents), after having already appeared very lenient towards the defense lawyers’ requests.

Nothing seems likely to change immediately in the United States justice system. The rules at the federal level are deeply rooted in the U.S. Constitution. And elections are dearly defended by Americans at the local level. “ There is a very romantic attachment on the part of Americans to democracy, and to the fact that everyone should be elected by the peoplenotes the lawyer, author of several works on the subject. I think this system has the potential to damage our democracy. Our democracy needs limitations on the power of the majority. »

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