Cunningham: Constitutional checks and balances 'eroded'

Former Kentucky Supreme Court Justice Bill Cunningham speaks at Murray State University's celebration of Constitution Day Tuesday, Sept. 17.

DAVID B. SNOW | The Sun

MURRAY -- At the beginning of his Constitution Day speech Tuesday, Sept. 17 at Murray State University's Curris Center Theatre, retired Kentucky Supreme Court Justice Bill Cunningham held a small book in his hand and showed it to the audience. Part of it -- just a few pages -- contained the text of the U.S. Constitution.

"This little Constitution is the only thing that separates us from the jungle," he told the audience of college and high school students. "Try to imagine as you sit comfortably in an air-conditioned auditorium this afternoon where you might be but for these few pages in this little book.

"Some of you might be in slave labor somewhere because of the way you spell your last name. Some of you might be living in basements of friends or haystacks, the location of which change nightly as you move constantly to avoid arrest and prosecution because of your political views. ... Some of you might be sitting in prison cells this afternoon because you write for the wrong newspaper. Some of you may not even be here."

Cunningham, who retired Feb. 1 after more than 11 years of representing the 1st District on the state Supreme Court bench, teaches a class at MSU called "Topical Seminar in Legal Studies/Criminal Law in Real Time." He was one of several speakers at Murray State's celebration of Constitution Day, marking the 1787 date that the Constitution was signed.

The Lyon County native criticized the recent abuse of the balance of powers spelled out in the Constitution, saying the 1987 Senate rejection of Robert Bork as a U.S. Supreme Court nominee began the ongoing "food fight" between the Democratic and Republican parties.

"The system of checks and balances in government was developed to ensure that no one branch of government became more powerful than another," he said. "... That principle has been eroded, and that principle is being attacked. Over the past 30 years, there has been an escalating threat to the judiciary both at the federal and state levels. The U.S. Senate has twisted the standard of 'advise and consent' to 'approval,' or as Justice Brett Kavanaugh once said, 'We have replaced 'advise and consent' with 'search and destroy.'

"The president of the United States has the constitutional authority to appoint judges with the advice and consent of the United States Senate -- not with the approval, but with advice and consent. The appointment by the president has become politicized with both the Democrat and Republican parties abusing the process by placing their own political litmus test on the judicial selections."

Cunningham added the current Republican Senate leadership "has claimed ownership to the third independent branch of government," the judiciary, "by pushing their own political agenda in that selective process." He noted the Senate failed to follow the Constitution in 2016 by refusing to conduct hearings for the nomination of Merrick Garland to the U.S. Supreme Court by President Barack Obama.

"By failing to do so, Senate Majority Leader Mitch McConnell breached his oath to support the Constitution of the United States and instead advanced his own political agenda by simply waiting, waiting, waiting until a Republican president comes aboard," Cunningham said.

Cunningham said that labeling judges as being conservative or liberal is meaningless to judges.

"For judicial candidates to be allowed to declare party affiliation in advance of their candidacy or commit themselves to certain opinions on public issues is to engender a lack of respect for the independence and the objectivity and the fairness of the judiciary," he said.

Cunningham is a 1962 MSU graduate who served for 15 years as a circuit court judge on the 56th Judicial Circuit in western Kentucky. He also served as a prosecutor and the city attorney for Eddyville in the 1970s. An Army veteran, he served in Vietnam, South Korea and Germany.