"We do not have Obama judges or Trump judges, Bush judges or Clinton judges."
Chief Justice John Roberts
Attorney Thad Guyer: "Ludicrous."
He stood up to Trump! He reminded Trump that the Judiciary is an independent third branch, with its very own Article Three! Democratic institutions are safe!
Maybe not.
Guest post writer Thad Guyer has a different take. He says Roberts got seduced into engaging with Trump and has therefore been diminished by him. The way you be an independent branch is to be independent, and that requires ignoring Trump, not disagreeing with him.
Thad Guyer starts with a premise that of course the federal courts are political. Trump knows it and John Roberts knows it. The issue here is what to say about it.
Guest Post: Thad Guyer
“Chief Justice Roberts Further Degrades the Judiciary by Answering to Trump-- Like Everyone Else”
Thad Guyer Trump wants government rearranged. First he summoned Paul Ryan and Mitch McConnell, and they came. Now he’s summoned Chief Justice John Roberts and he too came. The worst part is not that Roberts asserted a ludicrous defense that the courts are not political. The worst is he answered Trump’s call directly, i.e., Trump trashed political “Obama judges”, then the Chief Justice answered that judges—no matter who appointed them— don't rule based on politics, to which Trump then replied that civil rights lawyers routinely forum shop by filing their cases in California whenever possible. That’s the institutionally harmful part— that John Roberts politically engaged one-on-one with Trump knowing full well that Trump’s immigration case would in short order be before his court. That is, Roberts and Trump are already adjudicating a profoundly important case in the media rather than in the courtroom.It’s one thing for justice “the notorious RBG” to trash Trump, after all, she’s a media star. Forced by backlash to apologize, she effectively answered to Trump after he hit back on her “very dumb political statements”, noting “her mind is shot - resign!” See, “The Notorious RBG apologizes for interview comments (again)”, Washington Post, Oct 16, 2016 (https://goo.gl/V8dT86). So why not break tradition, retired justice John Paul Stevens must have thought, when he publicly attacked Trump in a media interview. See, “Retired Supreme Court Justice Criticizes President Trump's Response to Travel Ban Cases”, Time, Jul 5, 2017 (https://goo.gl/NBYpF6). He got the media bug, too.And now, without the effective quarantine provided by the court’s ‘no political comment’ tradition, the Chief Justice himself has become infected. Roberts, being unable to learn from RBG’s apologies and the hyper-political fiasco of the Kavanaugh hearings , jumped onto the political stage with a patently farcical defense against Trump: “We do not have Obama judges or Trump judges, *** we have an extraordinary group of dedicated judges doing their level best to *** [maintain] an independent judiciary *** we should all be thankful for.” See, “Chief Justice Defends Judicial Independence After Trump Attacks ‘Obama Judge’”, NY Times, Nov 21, 2018 (https://goo.gl/AHdRSs). To any civil rights lawyer like me practicing in the federal courts, Trump stated the plain reality that if you want partisan Republican judges, you file in Dallas. But if its partisan Democrat judges your need, then file in San Francisco. Texas courts struck down Obama’s executive orders, and San Francisco courts are doing the same to Trump. Control of the Supreme Court and the Kavanaugh civil war energized the bases in both parties explicitly because everyone knows the judiciary is now overtly political.Other justices on the court are undoubtedly irritated with Robert’s political foray using the court’s public relations department. Legal scholars are disappointed. This means that when Trump’s immigration asylum case lands on his desk, all cameras will be on a rebuked and regretful Chief Justice. That’s a big tipping of the scales Trump’s way before the first legal brief is even submitted. To have the Chief Justice dialoging with Trump outside the courtroom on a pending case is, ironically, a major degrading of judicial impartiality and independence. Everyone, it turns out, answers to Trump.
5 comments:
I'm interested in this, and Thad Guyers remarks really made me rethink my initial approval of Robert's remarks. On reflection, Thads right. It would have been better for Roberts to hsve just ignored *45 and his illiterate ravings.
A timely and well written retort.
I was surprised that Roberts responded in the way he did. I would have preferred he did not. He's been appointed for life. He does not need to campaign. He should let his own rulings indicate what type of judge he is.
And the writer is correct, we remember the appointments by the President who nominated them.
It's not that courts have political consequences (duh!), it's that Trump is undermining the authority of those who we have chosen to arbitrate our issues and administer our laws in order to protect himself from the consequences of his actions past and intended.
Silence is acquiescence.
Counterpoint. Agreed premises: 1) nobody believes the courts are “not political” since at least Bush v. Gore; 2) nobody beats DJT at the media game. However, I believe that judges do believe they can attempt to be nonpolitical, even when they are forced to decide political questions. Independence of the Judiciary is continually under attack. Therefore, I think it’s important for Roberts to assert the independence of the institution. People lose confidence in the fairness of the process if they believe the process is rigged (“I’ll win that case in the Supreme Court because I picked the judges.”). Federal judges are appointed for life after all—their decisions (or statements to the media) are not picked apart in the next election cycle. TX and CA differences are cultural, not just political. It is legitimate for a judge to consider the values of the community they reside in to the extent applicable. The balance of power has been out of whack, so the reminder from Roberts is timely. First they came for the judges, who did not speak out against injustice. That’s the lesson from “Judgment at Nuremberg.”
I agree with Rick, above. Silence is acquiescence.
This would not go away, and Trump would not stop with the one attack.
Post a Comment