Immediately before Thanksgiving, President Trump issued one of his embarrassingly ill-informed and predictable blasts at the judiciary. That was not news until Chief Justice John Roberts responded unexpectedly after holding his tongue through Trump’s repeated attacks on individual federal judges and courts. Trump’s statement reflected astonishing ignorance about the operation of the judiciary. Roberts, who, unlike Trump, surely knows what he is doing, issued a misleading and self-serving deflection.
Trump launched the brouhaha by denouncing Judge Tigar of the Northern District of California, who blocked Trump’s order making asylum available only to refugees who present themselves at an official port of entry. Trump denounced Tigar as an “Obama judge” and launched into a rambling denunciation of the Ninth Circuit. It’s unclear whether he understood that Tigar is a district court judge and does not sit on the Ninth Circuit. Trump announced that he was “going to put in a major complaint because you cannot win — if you’re us — a case in the 9th Circuit and I think it’s a disgrace. This was an Obama judge. And I’ll tell you what, it’s not going to happen like this anymore.” Major complaint? Where? To whom? Does he think the federal judiciary has a complaint bureau? If only it did because I’d like to lodge a few complaints myself. Shelby County, Citizens United, Janus, Parents Involved. The list goes on.
Trump, of course, believes that “Trump judges” owe fidelity to Trump, the person. He apparently believes that since he selected them he can demand that they rule in his favor. Rule of law be damned. They work for him.
When asked by the Associated Press, Roberts broke his silence by issuing a written statement. Doing so seemed unwise for a Chief Justice concerned about the politicization of his court. By entering into the equivalent of a Twitter war with the world’s most famous political tweeter, Roberts stepped into Trump’s playground. Unless the Chief intends to join Twitter, Trump will have the last blast in their war of words. Someone should have reminded Roberts not to wrestle in the mud with a pig, since you both get dirty, but the pig likes it. Trump’s subsequent tweets showed he clearly loved it. Robert Mueller has set the gold standard for dealing with Trump’s attacks. Roberts should follow his lead.
Roberts’s response read: “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. The independent judiciary is something we should all be thankful for.”
This is a marvelous statement, extolling the importance of judges in protecting the rule of law. Unfortunately, it is both divorced from reality and a deflection from the true object of Trump’s complaint. It is possible to have – as I think we do – both Trump judges and a technically independent judiciary.
Every lawyer practicing in federal courts recognizes the strong correlation between the president who nominated a judge and the outcome of the case. That correlation has grown stronger in recent years. While Democrats watched, Republicans recognized the power of the judiciary in achieving Republican political goals and weaponized judicial selection to serve their ends. Reaction to the Warren Court, Lewis Powell’s 1974 memorandum urging the Chamber of Commerce to use courts to achieve business-friendly ends, Nixon’s, Reagan’s, and the Bushes’ focus on selecting judges based on conservative ideology, the growth of the Federalist Society and the conservative legal movement all marked significant points in this effort.
Republicans developed astonishing skill at identifying and nurturing reliable conservative ideologues who could be trusted to rule for the Republican agenda. While they have filled lower courts with the fruits of these efforts, Republican success at the Supreme Court level is most obvious. Recent Republican nominees have followed astonishingly similar paths. Indeed, Trump’s two nominees went to the same Catholic prep school, followed by Ivy League undergraduate and legal educations, court of appeals and Supreme Court clerkships, government service in Republican administrations, a touch of big law firm practice, and service on a federal court of appeals. Along the way, they maintained close association with the Federalist Society.
After a lifetime of vetting, presidents can predict fairly confidently how nominees will rule on the big issues. Once they are on the bench, they are independent, but their independence is driven by ideology that leads them to vote consistently to achieve Republican political goals. Partisanship and ideology merge to dilute the meaning of independence.
In the past, justices were selected from more diverse backgrounds. Sure, there were court of appeals judges, but there were also senators, governors, attorney generals, private practitioners, and state judges. These nominees generally were less locked into views on issues that might come before the court and often surprised the presidents who appointed them. Every currently serving justice except Elena Kagan came to the Supreme Court from a federal court of appeals. The risk of another Souter or Stevens has been reduced dramatically.
The result is justices and judges who serve partisan ends without having to think in overtly partisan terms. Trump’s tweet, therefore, is correct in that there are Trump judges. He simply takes it one step too far by demanding unwavering personal loyalty.
Roberts knows this history better than anyone. He is genuinely concerned about the public perception of the court, particularly following Brett Kavanaugh’s overtly partisan confirmation rant. He wants the court to have legitimacy when it starts pumping out 5-4 decisions regarding abortion, voting, dismantling the administrative state, campaign finance, labor, business, and religion. His statement, therefore, is designed to speak more to the public than to Trump.
So, Trump is correct that we have Trump judges and Obama judges, but he is wrong to expect personal loyalty. Roberts is correct that judges are independent, but only in the narrow sense that they are free to rule as they please once they have navigated satisfactorily the pipeline that weeds out free-thinkers and yields judges who will produce predictable outcomes. The bottom line is that we would all be better off if Trump stopped tweeting about judges, John Roberts returned to a Mueller-like silence, and presidents selected nominees from a larger pool.