06/09/17 Dmitry Bam, Maine Law, Exec. Privilege and the Supreme Court

(Photo: President Laura Young, Bob Martin, and Dmitry Bam.)

President Laura Young had the great pleasure of having Bob Martin introduce Dmitry Bam, an associate professor at Maine Law who specializes in, among other things, constitutional law and the judiciary. Bob’s excellent introduction briefly touched on the “rule of law” theory of having judicial power restricted to following established laws so that judges are generally accountable.

Professor Bam followed up on Bob’s introduction by focusing his talk on how judges – both federal and state – are chosen in the U.S.  He indicated that according to Article III of the U.S. Constitution, federal judges are nominated by the President and confirmed by the Senate. These judges are appointed for life. He noted how in recent years the appointment and confirmation process for judges to the U.S. Supreme Court has become quite political.

The state judicial system is often much different than the federal system. In some states (often the New England states), judges are appointed by the governor with approval of the legislature. However, 39 states elect their judges and statistics show that about 85% of all state judges must run for election. 

Some would argue that we’re facing a system where at the federal level with judicial appointments and tenure for life, we have a system with very little accountability. The state system of elections, however, may be one where there is too much accountability due to expensive elections where studies have shown that elected judges tend to favor those who contributed to their campaigns.

Professor Bam explained that in Federalist No. 78, Alexander Hamilton wrote about judicial independence and noted that the role of the judicial branch was to:

1) be independent and neutral to protect minority rights; and 

2) protect the majority from abuses of power from elected officials.

There are various proposals for ways to limit too little accountability in the federal system and ways to limit too much accountability in the state system – but no ideal methods have been agreed upon.  

Professor Bam then took timely questions from the audience about the Senate’s refusal during the Obama administration to confirm a Supreme Court judicial appointment; a discussion of the use by the President of Executive Orders; and how the Supreme Court might rule on the President’s travel ban.