Bankruptcy Judges are Number 1

Bankruptcy Judges are Number?

Being a judge isn’t a popular calling lately–at least during the Republican Presidential primary season. Courts are blamed for everything that ails society.

For example, Republican Presidential contender Rick Santorum laid out his view that the judicial branch of government is the least important.  He explains his view by stating: Our founders intended for them to be the least consequential of the three branches of government. How do I know that for a fact? Because it’s Article III. Article I is Congress, Article II is the president and Article III is the courts. If it was the most important, they wouldn’t have put it third.

He pulled out his pocket Constitution in support of the argument.  The late Senator Sam Ervin would have been proud–well, maybe not. And as for the 9th Circuit Court of Appeals, Santorum is fed up.  That Court, he says, should be shipped to Guam. I don’t know what the 9th Circuit Court of Appeals has done to deserve this, but I think it would certainly be unfair if we didn’t stop to ask the people of Guam if they want the 9th Circuit Court of Appeals. Don’t they have any say in this? Not, according to Santorum. But Santorum’s flawed–and downright bizarre–logic that the last mentioned is the least important got me thinking.

Bankruptcy Courts’ Role

First, I wondered about where all that “checks and balances” stuff I learned about in Mrs. DeVore’s 8th-grade civics class was going–apparently to Guam or some other place. Then I also wondered what this means for bankruptcy courts. Where do the bankruptcy courts fit in? Bankruptcy courts are number 1 since they are Article I courts.  (Or do I say, “Bankruptcy courts are number I”?) How do I know this? The U.S. Supreme Court said it in Stern v. Marshall.  Okay, we knew the Article I thing before that, but this decision makes it clear. (Ignore the fact that the Supreme Court is an Article III Court and therefore part of the least important branch of government.) “But Stern limits the jurisdiction of the bankruptcy courts,” you say.  True, but let’s not get bogged down in details.  I’m a glass-half-full kind of guy and think that bankruptcy judges should take some comfort in the fact that they are in first place in the “What-Branch-Matters-Most” contest.

So I say to bankruptcy judges: Hold your heads high! You are number 1!

Postscript: Guam is, of course, a U.S. Territory. It also turns out that Guam is in the 9th Circuit already. Whether Guam should have more of the 9th Circuit than it already has will probably be fiercely debated during primary season among those candidates seeking to lead the free world. Still, it is the position of this author that Guam should be consulted before any changes are forced upon it. Perhaps instead, the circuits should be changed so that, for example, the 9th Circuit switches places with the 6th Circuit, and so on. Of course, the question then becomes, do the Guamanians want the 6th Circuit?  If not, would anyone else want the 6th Circuit? Santorum may have opened up a real can of worms.

Still, Santorum’s views seem workable compared to those of Republican contender Newt Gingrich. Gingrich advocates sending U.S. Marshals to arrest judges–Article III judges, I’m sure, so bankruptcy judges relax!–and have them brought to Congress to justify their decisions in Congressional hearings. This can’t happen for a variety of reasons–most notably that we are not Nazi Germany–but still, it illustrates the point.