Did J. D. Hayworth Make a Political Blunder When He Signed His "Contract with Arizona Citizens"?

J. D. Hayworth greets a supporter
at the state capitol

Today J. D. Hayworth, Senate primary candidate in Arizona, signed what he has termed his 10-point Contract with Arizona Citizens. In this contract he promises a number of things including efforts to defund and repeal Obama care, a commitment to border security and opposing amnesty, an audit of the Federal Reserve, a balanced budget amendment, laws mandating that Congress cite constitutional authority for the measures they enact (what Rep. Trent Franks termed his Enumerated Powers act), opposition to Cap and Trade style legislation, term limits for all legislative and judicial officers, and a commitment that he himself would only serve two terms.

With this contract, Hayworth hopes to revive memories of the remarkably successful Contract with America from 1994 which he also signed. Through this, Hayworth wishes to make it known to the voters what he will be working for and what his limits will be as their Senator should they choose him. There has been much talk about the Contract with America in recent months as the Republican Party tries to reestablish itself and regain control of Congress in the November elections. This tactic is not without merit and should appeal to conservative voters in Arizona. For my part, I agree with what he has listed in his contract and applaud him for making the commitment to fight for these 10 issues... with two significant exceptions.

To Amend or Not to Amend, That is the Question

The first item I take issue with is the proposal for a balanced budget amendment to the United States Constitution. On the face of it, this is a good thing, saying that, Congress shall be required to maintain a balanced budget. However, you cant simply look at this in those terms because its a lot more complicated. If Congress had not had the power to run a deficit, we would never have been able to fight World War II—nevermind the Cold War—and you and I would now be speaking either German or Japanese or possibly Russian. Then there's the issue of the existing debt. Having a balanced budget does not mean you pay that down, it just means you pay the interest. What about times of economic turmoil when projected tax revenue suddenly decreases sharply? Does the government have to shut down? We all might like to see Congress take an unpaid break but do other offices shut down as well? If so, does that mean that the Defense Department, the FBI, and the CIA send their agents home for the rest of the year?

No, you can't simply declare a balanced budget without allowing for unusual conditions. It might be appropriate to say that Congress shall not run a deficit except under certain conditions and enumerate them. Perhaps you also say that you can't run an absolute debt level of more than 5% of GDP and that to raise that in like 2% increments up to a maximum of perhaps 35% required a 6/10 vote of both houses of Congress so long as the aforementioned conditions apply. Some would suggest that it would be wise to state that notes issued shall not have a term of maturity any longer than 15 years. We have an existing debt as it is, shouldn't there be provisions for paying that off as well?

You can see that the issue gets complicated when you start to add in all the potential problems you'll have to address. Complication is something that you absolutely do not ever want in the constitution and thats what such an amendment would do. (Picture the problems that would be created if you attached a five page amendment to the constitution which is, itself, just four pages.) So while I support such a measure, the constitution is not the place for it. Rather, it should be enacted as law. Now I can hear you all saying that laws can be changed. Yes, that's true. After seeing how difficult this can get, is that really a bad thing? There are ways within the law to mitigate this, though. It can be written into the bill that, this measure will not be considered to have passed without a 3/4 vote of both houses of Congress and the signature of the President and cannot be amended or repealed without the same. You see, you can pass some pretty tough laws and give the legislature a pretty high bar to cross to change them without going through the constitution where it may never be alterable and well be stuck with the consequences if it is not properly thought through.

Judge not...

It is not, though, the balanced budget amendment which gets my dander up, it is the term limits for judicial officers. Without clarification from Mr. Hayworth, I have strong reservations about this. In fact, I'm going to just simply say that I'm vehemently opposed to it. For you to understand why, let me take just a moment and review how our system of government is set up. First, we have the House of Representatives to represent the voice of the people and alongside this we have the Senate to represent the interests of the states (well, before the 17th amendment, at least). In the House, you have the people debating and arguing with each other while over in the Senate you have the states doing the same. The House and the Senate then argue with each other and the whole while, the President is waving his veto pen at both of them. The entire system of government is adversarial, it was meant to be. This prevents the federal government from responding instantly and foolishly to every changing wind and undoing what was assembled by the Founders in a single vote. (As a side note, whenever I hear someone in Washington yell, "The Congress is BROKEN, you can't get anything done!" I want to just stand up and scream at the television, "Yes! That's the whole POINT, you nimrod!" So if you hear someone say that to you, politely tell them that you're glad they can't get anything done. It means your taxes won't be going up that year.)

Now for the important bit: the judiciary. In a way, the whole federalist system can be looked at as something of a political game. While all that wrangling is going on in Congress, and the Executive branch is implementing and enforcing the laws Congress thus managed to get enacted, and probably trying to investigate some member of the opposition party to get them thrown out of office so the President can get a party loyalist to take their place, standing off to the side acting as a referee is the judiciary, telling Congress or the President, "No, you can't do that," or, "Yeah, that's okay but only if you do this as well," or similar. What is important here is that they're monitoring the game but they're not playing. An impartial and unbiased judiciary is the keystone of our society; equal justice for all under the law, regardless of family background or political office. Despite certain debate on whether or not you can buy your way out of a trial with high priced lawyers and thereby defeat whatever you're charged with, it still applies today. (Or at least it did up until 2008.) Think about it, does a judge ever ask whether you're a Republican, Democrat, Independent, or anything else? No, because they're not part of the game. They don't care. All they care about is whether or not you broke the law. It is also consistently applied. The judiciary essentially functions the same now as it did when you were a kid and it is the same as when your parents were kids. It was wrong to take a candy bar without paying for it 100 years ago and it is wrong today. Under the United States system of jurisprudence, you will still be punished just as your great grandfather would have been in his day.

If you institute term limits for judges, magistrates, and every other category of judicial officer, two things will happen (lets assume 10 years is what is adopted): one, judges will begin to participate in the game and will seek to curry favor with one party or the other in order to get reappointed and keep their jobs, and two, a change of President from one party to another means a dramatic shift in the judiciary as the President appoints hundreds of officers loyal to his party as terms expire. You might say that Congress would prevent this but then I'll remind you of the current Congress and the long standing tradition of Presidents abusing recess appointments. Under these conditions, the Rule of Law goes out the window and the judiciary starts to overtly favor political parties. Equal justice is then merely a fantasy.

Preventing this sort of political influence of judges is exactly the reason why we have lifetime appointments now. The Founders knew there would be bad judges just as there would be bad Presidents, Senators, and Congressmen. You can't change human nature. So instead, they adapted to it. By making appointments lifetime, they limited Presidential appointments to just those judges who retired during his term in office. What percentage of judges do you think change during a four year term? 10%? 15%? I'm not sure of the real number, but it cannot be large. Remember, the deep water drilling ban that President Obama recently tried to institute in the gulf following the BP spill was blocked by a Reagan appointed judge. Reagan left office 22 years ago so that judge has been there at least that long and possibly as long as thirty years. Do you think he's concerned about Obama firing him? No, he's free to act without regard for what Congress or the President might think of him and that is exactly what was intended.

Please Explain Yourself, J. D.

The federal judiciary is our last line of defense against excessive government reach and it must not be tampered with. So while I support J. D. Hayworth's candidacy (I've given him money in the past and, in fact, just made another donation earlier today), if he doesn't understand this aspect of our government, it does not bode well for the people he is seeking to represent. You might be able to survive with something like limits of 20-25 years but then isn't that effectively a lifetime appointment anyway? So what's the difference? In my personal opinion, this was a significant mistake on the part of Mr. Hayworth and deserves clarification. Should Mr. Hayworth fail to provide a satisfactory explanation of what exactly he means by this in the context of the above information, I have to think that it will cost him more than a few votes in the upcoming primary.

Therefore, let me ask the question directly: J. D., why are you in favor of term limits for judges and do you understand the potentially severe damage this could do to our system of justice? I've supported you from the beginning but this seems more than a little questionable and I'd like an explanation.

Aug 2, 2010