Liberals Forcing Judicial Branch Crisis

Back in November, 2018, when President Trump criticized an Obama judge for being, well, for being an Obama judge--a resistance judge--CJ John Roberts felt called upon to rebuke the president. In the self important tones that only those who are immune to criticism for most of their lives can adopt, Roberts declaimed:

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is 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.”

It was a foolish statement, and a foolish thing to do. Consider the muddled thinking. Does having an "independent judiciary"--which is to say, a judiciary that constitutes a separate branch of the government--really mean that judges are somehow immune from the temptation to read their own political views into the constitution, or to write their own political views into law? The very suggestion is transparently daft, as anyone with a passing acquaintance with American history would know. To start a public dispute with that sort of bloviation was inauspicious. Professor Josh Blackman, no Trump fan, was quick to admonish Roberts:

“Specifically, what was it about President Trump’s most recent statements that occasioned a response? Why didn’t previous statements compel a judicial declaration? Ultimately, I think this sort of statement will backfire. In the future, Roberts will invariably be criticized for not intervening as Trump escalates his attack on the judiciary.”

President Trump is not one to suffer fools gladly, so he was quick to respond to Roberts' nonsense. And then to respond a bit more, as is his wont. His first response ran:

“Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country.”

Upon consideration, Trump added the next day:

“Justice Roberts can say what he wants, but the 9th Circuit is a complete & total disaster. It is out of control, has a horrible reputation, is overturned more than any Circuit in the Country, 79%, & is used to get an almost guaranteed result. Judges must not Legislate Security and Safety at the Border, or anywhere else. They know nothing about it and are making our Country unsafe. Our great Law Enforcement professionals MUST BE ALLOWED TO DO THEIR JOB! If not there will be only bedlam, chaos, injury and death. We want the Constitution as written!”

What Trump was specifically complaining about was the fact that illegal aliens and their enablers were running to the 9th Circuit and its Resistance judges to stymie Trump's very clearly constitutional measures to get control of our borders. Many of those judges were issuing nation-wide injunctions against Trump's clearly lawful measures--a previously almost unheard of action.

Professor Blackman was right. Taking on Trump was a losing battle for Roberts from the get go, and on multiple levels. Pretending that there were no Obama judges wasn't going to fool anyone. The misuse of injunctions by politically motivated judges was indefensible. And the president's call for action could not be ignored.

In the ensuing months, the SCOTUS has responded to Trump by taking up an unprecedented number of emergency applications from DoJ to stay lower court injunctions, in response to the growing legal and judicial disorder created by Obama resistance judges. What was happening was a threat to our constitutional order that could no longer be ignored or dealt with in any other than an emergency manner. By its actions, the SCOTUS was giving the lie to Roberts' claim that there are no Obama judges. With a few tweets Trump had won the debate and revealed Roberts as an empty suit. Roberts had taken a losing position from the start.

This didn't sit well with the Resistance, which had been counting on this abuse of the judicial process to face down Trump on one policy issue after another. This week the wise Latina, Sonia Sotomayor, lashed out at her brother justices on the SCOTUS for taking so many emergency appeals to override the unconstitutional obstructive tactics of liberal judges.

The answer to Sotomayor's complaint is obvious, and Carrie Severino of the Judicial Crisis Network provided the answer to Laura Ingraham. The sharp rise in applications from DoJ's Solicitor General (Noel Francisco--who reports directly to AG Bill Barr) to stay lower court injunctions--is simply a response to the unprecedented and abusive misuse of nation wide injunctions by District court judges.

Senator Ted Cruz put the matter even more pithily today, addressing the issue of Resistance judges:

“…I believe we have a handful of judges who are operating effectively as part of the Resistance Movement, trying to put themselves in the way of Trump policies they happen to disagree with. And so I have to say I read Justice Sotomayor’s complaint about, ‘gosh, we’re getting all these emergency appeals of the Supreme Court’, I read it a little bit like an arsonist complaining about the noise from the fire trucks. The reason there is so many appeals is you’ve had fifty-five nationwide injunctions from far too many judges who are not honoring their oath. They’re not following the law. Instead they’re operating as partisan political activists.”

But Sotomayor had failed to learn the lesson that Roberts had been forced to learn--let the Big Dog lie. Trump was not about to let Sotomayor get away with anything, and so of course he responded:

Donald J. Trump
@realDonaldTrump

“Sotomayor accuses GOP appointed Justices  of being biased in favor of Trump.”
@IngrahamAngle

This is a terrible thing to say. Trying to “shame” some into voting her way? She never criticized Justice Ginsberg when she called me a “faker”. Both should recuse themselves ...

10:09 PM · Feb 24, 2020·Twitter for iPhone

....on all Trump, or Trump related, matters! While “elections have consequences”, I only ask for fairness, especially when it comes to decisions made by the United States Supreme Court!

Trump went right to the heart of the matter: obvious bias. By any ordinary standards his case is beyond dispute: Both NeverTrump justices should recuse themselves as biased. This is a debate that neither Sotomayor will win in the Public Square.

But what's really going on here is liberal judges openly revealing themselves as nakedly political players. This is a losing proposition for the Judicial Branch as a whole. When once the federal judiciary renounces constitutional principle for naked politics, they will place themselves in competition with the acknowledged political branches--the Legislative and the Executive. Fighting on the ground of politics, the Judiciary will lose every single time, and will be forced into subservience to the political masters.

This is a process that began many decades ago, when first the SCOTUS began to dabble in policy. Liberals may not care about constitutional order. Liberal judges may be perfectly content to take their marching orders from liberal politicians--which is what will inevitably happen. Once the justices descend from the heights of constitutional principle, abandoning it for political policy, the politicians will not allow the judges to scramble back to the top of that mountain--ever.

ADDENDUM: Woops! You'll recall that this past week Judge Cindy Rufe--a Dubya judge--tried to embarrass the president by summoning an "emergency" conference call of the Federal Judges Association "in response to the Trump administration’s interference in politically sensitive cases." Cindy had to back out of that, humiliated. Here is a reference to the type of blowback Cindy got from that blatantly political ploy:

... after the Justice Department moved to reduce a sentencing recommendation for Roger Stone, USAToday reported that the Federal Judges Association was calling an emergency meeting. Its president, District Judge Cynthia Rufe, said the idea was to address concerns about how Justice officials and the President were intervening in sensitive cases. 

That shocked a number of federal judges, and Judge Rufe later tried to play it all down. Not, though, before one of the towering figures on the Second Circuit, Jose Cabranes, fired off to Judge Rufe a now widely circulated email. It expressed concern that the emergency meeting would “purport to speak for the federal judiciary on a pending political question.” 

“I urge you to come off this precipice, and to withdraw from active politics in the name of the federal judges of this country,” Judge Cabranes, a longtime member of the FJA, wrote in his brief cable. “If you do not do so, you risk confusing the public about the role of the courts in our constitutional order and thereby deepening the crisis in confidence in our institutions.”

That strikes us as sage advice for all 870 of the judges commissioned under Article III of the Constitution.