It was inevitable. The left would employ lawfare against Donald Trump. One can expect it to continue to do so, no matter how illegitimate and absurd its application. In the current 9th Circuit—the circuit so often overturned by the Supreme Court as to have made itself ridiculous—the circus continues to play. Mr. Trump called Federal Judge James Robart a “so-called judge,” and of course, the left went berserk(er).
Senator Richard Blumenthal, a Democrat, claimed that Judge Neil Gorsuch, Mr. Trump’s Supreme Court nominee, told him Mr. Trump’s comment about Judge Robart was “disheartening and demoralizing,” prompting this tweet from Mr. Trump:
Which was followed by this tweet when it was discovered that the Senator took Judge Gorsuch’s comments in his recent conversation with him out of context:
There’s also this from the good folks at the indispensable Legal Insurrection:
Judge Gorsuch has made it very clear in all of his discussions with senators, including Senator Blumenthal, that he could not comment on any specific cases and that judicial ethics prevent him from commenting on political matters,’ Ayotte said. ‘He has also emphasized the importance of an independent judiciary, and while he made clear that he was not referring to any specific case, he said that he finds any criticism of a judge’s integrity and independence disheartening and demoralizing.
And in a ruling that surprised precisely no one, a three-judge panel of the 9th Circuit ruled against the Administration, leaving the stay against President Trump’s temporary immigration pause in place. Considering the Constitution and specific federal law is entirely in President’s Trump’s favor, and is not in the least ambiguous, on what basis did they rule? Because Trump, of course, but they decided that the state of Washington would suffer irreparable harm because a few unnamed and unnamable students from Somalia, or faculty, might be temporarily inconvenienced. That’s what, to the 9th Circuit, takes precedence over national security and the lives of Americans. Absolutely insane.
In the meantime, Republicans in the Congress are addressing a related judicial issue, as Fox reports:
Republican Sens. Jeff Flake and John McCain of Arizona introduced legislation last month to carve six states out of the San Francisco-based court circuit and create a brand new 12th Circuit.
They argue that the 9th is too big, too liberal and too slow resolving cases. If they succeed, only California, Oregon, Hawaii and two island districts would remain in the 9th’s judicial fiefdom.
Right now, Flake said, the circuit is far too sprawling.
‘It represents 20 percent of the population — and 40 percent of the land mass is in that jurisdiction. It’s just too big,’ Flake told Fox News on Wednesday. ‘We have a bedrock principle of swift justice and if you live in Arizona or anywhere in the 9th Circuit, you just don’t have it.’
Flake says it typically takes the court 15 months to hand down a decision.
‘It’s far too long,’ he added.
Progressives argue that this is merely an attempt to dilute the progressive power of the 9th Circuit and to pack a new 12th Circuit with conservatives. The effect of establishing a new circuit under Donald Trump would be, more or less, that. Most of the current 9th Circuit judges are progressives, and fellow progressives argue not for political balance on the courts, but always for progressive supremacy. This is the wrong, and anti-liberty, argument, but more on that later. Returning to Fox:
The problem is the judges in the 9th Circuit, particularly the liberal judges, don’t want to give up any of their jurisdiction,” Flake said.
Congress created the court in 1891. At the time, the area was sparsely inhabited – only four percent of the U.S. population lived in the area compared to today’s 20 percent.
In 1998, Congress appointed a commission to reexamine the federal appeals courts’ structure. The commission ultimately recommended against splitting the 9th Circuit.
But carving up the large circuit isn’t out of the realm of possibility. In 1929, Congress split the 8th Circuit to accommodate a population boom and increased caseloads.
On a caseload and equal representation basis alone, Flake’s bill seems the epitome of common sense. This is partly why Democrats oppose it.
Democratic strategist Joe Lestingi pushed back on accusations the court leans left.
“We don’t complain about courts being too conservative,’ he told Fox News. ‘The truth is… the liberal side of that court provides the conflict we need to settle our most basic disagreements.
What utter lies and nonsense. Democrats don’t complain “about courts being too conservative?” Then what is the Democrat opposition to every Republican Supreme Court nominee, including Judge Gorsuch, about? Are Republicans somehow incapable of nominating qualified judges? Lestingi asserts the courts are merely an extra-powerful extension of the legislature where competing political philosophies are in “conflict,” and “our most basic disagreements” are settled. Is Lestingi really so unfamiliar with the role of the judiciary? Certainly not. He’s lying for a purpose. More on that, too, shortly.
He added that the 9th Circuit’s track record of rulings being overturned — sometimes unanimously by the U.S. Supreme Court — is all part of the judicial process.
‘If the Supreme Court wasn’t going to overturn lower courts’ decisions, then we don’t need a Supreme Court anymore,’ Lestingi argued.
Once one begins to lie, one needs an ever-increasing pack of supporting lies to maintain the narrative. The question is why the 9th Circuit is so often overturned, and often unanimously, by the Supreme Court? Because the Circuit’s decisions are all too often based in vindicating progressive principles, not in upholding the Constitution. Even the leftists on the Supreme Court—and they’re far too often willing to ignore the Constitution in favor of progressive politics—can see that, particularly when a Circuit is a blatant about it as the 9th. The 9th Circuit too often acts as an extra-powerful legislature rather than a court.
This is an area where Republicans, with distressing regularity, earn their appellation: “the stupid party.” The only issues that should ever be considered in the nomination and appointment of judges at any level, but particularly at the Federal appellate level and the Supreme Court, should be: are they qualified, and will they ignore any and all politics and uphold the letter of the Constitution and the original intent of those that wrote it? All other concerns are not only wrong, but dangerous to liberty. In opposing progressive nominees Republicans need never attack their politics and claim they’re too liberal, they must, instead attack their willingness to ignore or pervert the Constitution. Virtually all liberal nominees have long track records of ignoring the Constitution in favor of progressive policies.
This is the heart of the opposition to Judge Gorsuch, apart from “Trump!” Progressives oppose him because they know very well he will decide cases on the Constitution, not on politics, and particularly not progressive politics. His record on this is clear, as are his outstanding qualifications, and his judicial excellence. It is interesting to observe that the argument does not go both ways. The judges labeled “conservative” on the Supreme Court are in fact judges that decide cases on the law and the Constitution. That their decisions often comport with conservative principles is unsurprising because a bedrock principle of conservatism is original intent analysis of the Constitution. Not all conservatives live up to this principle, but it remains.
The liberals on the court are quite the opposite. They often hide behind rhetorical support for the Constitution, but their decisions and writings reveal their true nature. The minority opinion in Heller, the landmark Second Amendment case, for example, acknowledged that the Second Amendment spoke to an individual right to keep and bear arms, but asserted that the Court could impose virtually any burden on that right it preferred, essentially rendering the Second Amendment a right without any application in the lives of Americans.
There is, therefore, a distinct and disqualifying difference between “conservative” and “liberal” judges. How far we have fallen from the design of the Founders when we must, in the legislature and the court of public opinion, wrangle to ensure a political “balance” on our courts, and when that struggle is of necessity about keeping political leftists from perverting the constitution wholesale. If America is to survive, we must resolve to eliminate all political concerns and tendencies from the courts. Until that occurs, I’m afraid Judge Gorsuch will continue to lament the “criticism of a judge’s integrity and independence,” and will continue to find such criticism “disheartening and demoralizing.” Such criticism is not only reasonable, but necessary.
But we’re dealing with human beings. We can’t eliminate all politics! We can surely do much, much better than we’re currently doing.
Part of that process must be impeachment of judges that willfully decide cases on political rather than constitutional grounds. But that’s not fair! Reasonable people can disagree about judicial decisions. True enough, but the Constitution gives the legislatures the power to impeach judges, and analysis of whether the judge is merely making decisions based on the Constitution but within the reasonable boundaries of judicial discretion is their job. But that would be politics! Imagine that. That’s why we elect them. That’s why we loan them our power to wield on our behalf, to deal honorably and honestly with political issues and to maintain the rule of law.
This should not be difficult. Using the Second Amendment, again, if a judge ignores Heller, which establishes strict scrutiny for Second Amendment questions, and in so doing, ignores the Constitution by employing a lower method of analysis, there should be little difficulty in establishing such fact. A few well-publicized impeachments would have a salutary effect on remaining politically motivated judges.
Some, including judges, would also have us fail to understand plain language. We owe judges appropriate deference because of their positions, but respect—which is accorded the individual occupying such positions—is earned, or lost, every day. Judges are not super beings; they are perfectly capable of making mistakes and thinking with their emotions or political philosophies. Too many think their positions render them beyond criticism.
Judges are public employees, not untouchable, hereditary masters, and when they—and their supporters—seek to impose political orthodoxy rather than the rule of law, they deserve the scorn of all honorable Americans. All professional, ethical judges should rejoice in the impeachment of unprofessional, unethical, politicized judges, and so should every citizen. If judges don’t wish to be legitimately disparaged, they should eliminate its reasonable basis.
Splitting up any Circuit to achieve the goal of eliminating politics from the courts is a worthy and necessary action, particularly if it also enhances judicial efficiency. Fifteen months to render decisions if disgraceful.
Is Judge Robart a “so-called judge?” Perhaps, perhaps not, but Mr. Trump’s willingness to say so is not only every citizen’s right, but part of why he is now POTUS and Hillary Clinton isn’t. Perhaps the Trump Administration will see the first steps to restoring accountability and fidelity to the Constitution to the judiciary. It’s long overdue.