The top jurist of the world’s leading democracy has issued an absurdity of monumental proportions.
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” U.S. Supreme Court Chief Justice John G. Roberts Jr. said on Wednesday. His words were meant as a rebuke to President Trump for having called an Obama-appointed liberal jurist in San Francisco an “Obama judge” after he ruled against the Trump administration on migrant asylum. The case is likely to go to the notoriously liberal 9th Circuit Court of Appeals, the rampant leftist partisanship of which Mr. Trump called a “disgrace.”
Extolling the unmitigated virtues of the federal bench as a whole, Mr. Roberts described it as “an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”
“Roberts has clearly never met any of the 9th Circuit judges. Good grief!” said attorney and Small Business Administration official Holly Turner. “And since when do justices send press statements out?”
Chief Justice Roberts’ statement stretched federal election-laws attorney Cleta Mitchell’s credulity past the breaking point.
“I have the greatest respect for the chief justice,” she said. “But he is living in a fantasy world when he describes the judicial branch of government as a collection of fair-minded, independent, Constitution-loving umpires just following the law.”
As attorney and Liberty Council founder Mathew Staver notes, people have always referred to judges by citing the president who nominated them. The reason is obvious to all but, apparently, Chief Justice Roberts.
“Judges have too often allowed their political ideology to cloud their objective interpretation of the law,” Mr. Staver said. “If judges were neutral and interpreted the law, rather creating it, people would stop referring to them by the president who nominated them.”
On Tuesday, U.S. District Judge Jon S. Tigar in San Francisco ordered the Trump administration to resume accepting asylum claims no matter where or how migrants jumped our southern border.
Judge Tigar interpreted the law to mean the president may not invoke his national security powers to protect the integrity of our borders. Preposterous.
In chastising Mr. Trump for calling out Judge Tigar, Chief Justice Roberts makes the spectacularly silly claim that U.S. judges are not Democrat or Republican and not liberal or conservative when they interpret the law and the Constitution.
This doubtlessly should — and most likely will — come as a surprise to the other eight justices on the Supreme Court as well as to the 179 judges on the U.S. appeals courts, the 673 on the U.S. district courts and the nine on the Court of International Trade.
Like every other sentient human being, each jurist has a personal worldview that shapes the perception of reality and the reading of the law, regardless of how strong a commitment to objectivity the individual jurist strives to have. It’s not the fault of inherently bad or good forces; it’s the irresistible force of human nature.
James Madison got the difference between an idealized independent judiciary — which every judicial nominee swears to uphold — or independent anything else in government and the reality of every human’s unique intellectual filter.
“What is government itself but the greatest of all reflections on human nature,” the father of the Constitution and Bill of Rights wrote. “If men were angels, no government would be necessary. If angels were to govern, neither external nor internal controls on government would be necessary.”
He also got the hardest part: “In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place oblige it to control itself.”
It is not even remotely possible that Chief Justice Roberts doesn’t recognize as a fact of life that, as Alabama attorney James Porter notes, our “presidents tend to nominate judges who have a judicial philosophy which is compatible with each president’s own philosophy.” Nor is it remotely possible the chief justice doesn’t know full well that Democrats and Republicans fight over whether they get to appoint liberals or conservatives to various courts. Certain courts habitually hand down liberal decisions while others usually tilt the other way. That’s a matter of written record.
American Conservative Union Chairman Matt Schlapp said he thinks “it’s the chief justice who needs a public reprimand about the destruction caused when judges make it up as they go along. As for President Trump, he seems plenty aware what damage has been caused.”
“The entire, contrived Brett Kavanaugh controversy occurred because the biggest domestic threat to our Constitution is the gnawing away at its foundation by radicalized judges and their allies at the American Bar Association,” Mr. Schlapp said. “We all fought for Justice Roberts and more recently for Justices Neil Gorsuch and Kavanaugh precisely because they seemed aware of and ready for an honorable death match over Madison’s legacy.”
A 2005 appointee of President George W. Bush’s, Chief Justice Roberts is angling for a prominent place in the pantheon of liberal, compassion-on-the-sleeve Republican jurists. Think liberal Justice David H. Souter, appointed by Republican President George H.W. Bush, purveyor of a “kinder, gentler nation” than the one left by what he regarded as his gauche predecessor, Ronald Reagan. And remember Chief Justice Roberts’ decisive Obamacare vote, based on his claim to have unearthed a mysterious constitutional legitimacy underlying the obviously unconstitutional “mandate.”
It is a fact of life — and a good one for conservatives — that Mr. Trump is going full bore to make the “independent” federal courts over in his conservative image. Yes, they will be independent of his or anyone else’s influential, but they will be not philosophically or ideologically neutral.
As Mrs. Mitchell notes, “President Obama remade the federal judiciary in his philosophical image and the left has done an aggressive job of judge shopping over the past two years to find sympathetic judges. Too many of those judges see their role as thwarting President Trump at every turn, thereby nullifying the results of the 2016 election.”
She’s right in observing that the independent judiciary that Chief Justice Roberts described just doesn’t exist.
That’s why, with the Democrats controlling the House for the next two years and sure to make mischief for Mr. Trump, it’s important for Senate Majority Leader Mitch McConnell to keep the Senate in session in December until every one of Mr. Trump’s district and appellate court nominees are confirmed this year.
“What we are witnessing is the tyranny of unelected judges who are guided by their political views rather than the law,” Mrs. Mitchell says. “This is sowing the seeds of destruction of our democratic republic and it must be changed.”
Sound a bit like the sky is falling? Maybe it is.
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