Skip to comments.Roberts Is Wrong About Federal Judges and Here Is the Plan to Fix It
Posted on 12/02/2018 6:17:22 AM PST by Kaslin
President Trump upsets the establishment every time he opens his mouth and utters the truth that the establishment does not want discussed except in back rooms or in whispers at their Georgetown soirees. The courts are highly political and have gotten worse in modern times. Roberts needs to do something about it.
Roberts' statement in defense of the judiciary was dictated by his position as Chief Justice of the Supreme Court, but it is an outright falsehood. He knows these cases are forum shopped unless he has been living in denial. Why were cases on the limitation of people coming to America from certain designated countries brought to the courtrooms of judges in Hawaii and Maryland? It can be argued that the plaintiffs were in the area. But even if they were, those plaintiffs were ginned up by national organizations that supplied the resources and the legal counsel to argue the case.
We can go on endlessly defining this issue. The judge who made the recent Keystone pipeline ruling was an Obama appointee, for example. Please correct me if I am wrong, but the only ruling by a federal judge not appointed by Obama that has gone against Trump was the one regarding the banning of CNNs Jim Acosta from the White House. That ruling just stated Acosta needed to have due process and thus the WH set up new rules to handle unruly members of the press.
Roberts need only turn to his side and he will see Justice Ginsburg who has gotten herself involved in many political tussles outside the court. On his other side, Justice Thomas has raised his own political commentary, but is still no match to RBG.
Just because Roberts detests the political facet does not mean he should live in denial of the reality he knows exists. The political aspect has risen to a new level in recent times as there are two distinct judicial philosophies. The first is that of a strict constructionist invoked by most Republican appointees. The other is that of a living Constitution where most Democrats contend there needs to be an adaption of the rules to modern times and damn the actual writings. Then there is the RBG wing who just believes the Constitution stinks and lets do it another way. The power of the courts has become outsized in recent years because of these political strains in the judiciary.
This has caused the process for filling every judicial appointee to be fraught with political intrigue. The nominees attempt to hide their personal biases, but anyone paying attention knows that is a charade. Each party nominates someone fully vetted in their political philosophy.
Roberts also has to deal with the change in the definition of what a state attorney general does for a living. They now spend a significant amount of their time and resources suing the president or Congress for any act taken if they are in the opposing party.
The biggest problem is that there are 673 district federal judge positions, though not all are currently filled. Many of them now believe they are the chief judge for the entire country and can make rulings that determine the law for everyone. Because this attitude is rampant, the people who wish to get a proper ruling for their cause go to a courtroom which will be friendly to them. They then can sit on a victory until it goes to an appeals panel, the entire court of appeals and then maybe the Supreme Court. This process can take a couple years or more.
In fact, as I have pointed out previously, this was the policy Obama adopted for his public policy after the Republicans took over Congress. He would sign an executive order and, in effect, tell Republicans sue me, by the time you get a court ruling the damage will be done. This is exactly what he did with DACA and that is why we still have his policy in place which Obama himself said he could not do.
Yet Roberts still operates the courts as it was 100 years ago. They take certain cases for the session and only deal with certain cases during the term if taken up in certain situations. If you know the Supreme Court is not going to see your case for two to three years and you can get a friendly ruling from a partisan judge, then why not go for it?
Here is a suggestion. If a federal judge decides they can omnipotently make decisions for the country and reverse or put on hold a presidential executive order or congressional law, the ruling must be reviewed by an appellate panel within a week. If the appellate panel decides to ride with the federal judges opinion, then the full appellate court must issue an opinion within two weeks. That would then go to the U.S. Supreme Court which would have a month to hand down a ruling or they could stay the action of the lower court and get to the full opinion at a further time. They could not just boot the decision without taking it up. If they dont take it up, that would stay the decision of the lower court until they do.
The other cases not related to judges rulings to stop executive orders or congressional laws would continue to wind their way through the courts under the current process.
This would put an end to the benefit of forum shopping that allows a plaintiff the ability to put a stop to executive orders or congressional laws. These injunctions can eliminate actions with a time queue like the decision of the judge to limit the administration stopping the large groups flooding the border from Central America. By the time the decision is appealed the migrants are already in the country and absorbed into neighborhoods never to be seen again. It would also halt presidents from taking executive actions that are constitutionally questionable knowing they will not be properly reviewed for years.
Roberts is still operating the court as if he were John Marshall from two centuries ago or William Howard Taft a century later. There is very little adaptation of the courts to modern times while the litigants are gaming the system with modern techniques.
Mr. Roberts is rightfully upset that President Trump accused his judges of acting in a partisan manner. Trumps statements are true though and everyone knows they are; thus you dishonor yourself by defending a system that no longer exists, if it ever did. There must be changes to defuse the partisanship you so deeply abhor Mr. Chief Justice, and you must be the one to lead fixing it.
Remember way back?
Those days when we actually trusted and respected the judiciary?
When we actually thought that a law degree indicated a modicum of intelligence rather than memory?
Then came Bubba.
And the Hillabeast.
And Dorkbama the Muslim eunuch quota baby and wife.
And the liberal jokes on the Supreme Court.
Sorry, but we don’t respect the courts and very soon we’ll tell the same thing to the courts that they’ve been telling us.
And there are more of us than them.
I read of the Papuan New Guinea word, "Mokita," which means:
"The truth we all know but agree not to talk about."
It applies here. The courts have become political; Roberts wishes to pretend it is not so and pretend they adhere to their original but long gone ideal.
Roberts is a partisan justice, even though he rails against partisanship. I still wonder what they have on him that he would vote for that abomination of Obamacare. I keep going back to the argument, in front of SCOTUS that the fee is not a tax, but Roberts ruled it is a TAX and that is why it passed? The mind boggles. Why is it that so many Republican nominated Justices turn to the dark side?? I suspect they get drunk with power and want their new friends on the Left to like them. Pathetic. RULE BY THE LAW PLEASE!
Plus the forum shopping is only possible because each answer every federal judge is believed to have geographical jurisdiction over the entire United States. How can anyone live in a scenario where thousands of others each have 100% binding jurisdiction over him with very little hierarchy among the thousands? Five levels, maybe? That’s just an invitation to chaos and caprice, yet we’re all required to sit around and pretend it’s legitimate.
All speech is political. Anyone who does not understand that precept is either a child or, if an adult, a moron.
The idea of an “independent judiciary” basically means a judge could apply whatever filter or foundation he wishes, chooses or is so influenced ( so much of independence) towards.
The only thing that should influence a judge is the written law of the US and the founding documents starting with the Declaration of Independence. International law, public opinion and political conniving be damned.
If a judge cannot stand to that criteria, he ought to , out of duty and honor, resign.
You mean before FDR and his Court kicked the Constitution to the curb? Judges have not been deserving of respect of constitutional matters since then.
Agreed. Chief Justice Roberts has acted more like a partisan Democrat than an independent judge interpreting the constitution. It has happened in the past that an appointee to the Supreme Court by a Republican turned out to be a liberal, for example, Sandra Day O’Connor. Hopefully, President Trump will get at least one more appointment. His first two appear to be true constitionalists.
Yep - Roberts was speaking in an ideal he doesn’t believe in....ideally his statement would be true but reality says Trump is right.
So the author believes Roberts is “rightfully” upset that Trump is telling the truth. He blows his argument at the end of the article.
I also don’t understand went the administration doesn’t fight fire with fire. Do some forum along of their own, if the only hierarchy among judges at the same level is who rules first on something. Set up someone, supposedly opposed, to sue over a policy in a selected court and have it upheld. Or, do the lib trick and get someone to sue top have a policy mandated.
Right. The idea of a single judge issuing an immediately effective order doesn’t sound like our country. The executive branch is where emergency actions are supposed to come from. Not unlike appealing to the Governor, the top State exec, to stay an execution at the 11th hour.
If a federal judge is over ruled at the appellate or Supreme Court level 3 times they should be removed from office.
The have demonstrated a complete failure to understand and apply the US constitution.
This would quickly put an end to this judicial nonsense.
It all comes down to accountability and right now these is none.
The pot calling the kettle black ...... Justice Roberts hypocritical? Yes. He let himself be bullied Obama and gang into finding a way around the unconstitutional obamacare rather than do the correct and constitutional thing, strike obamacare down.
So if Obama-appointed appellate judges overrule a Trump-appointed district court judge three times he Trump judge should be removed? That creates some perverse incentives for appellate judges.
The only quibble I would have is that SCOTUS sometimes reverses its own prior rulings - so a lower court judge might in all good faith think that (in the classic example) Plessy v. Ferguson should and might be overruled. The lower court judge is thus in a bind, knowing he might be vindicated by SCOTUS - or not - whether he rules with or against the Plessy precedent.
. . . and, knowing that, justices of SCOTUS might thereby be biased to stick with a bad precedent which otherwise they might overturn. Could that be finessed somehow, by having the justices of SCOTUS critique the lower judges objectivity? I kinda doubt it. Maybe you could modify your rule - and get support from SCOTUS for the idea - if you said that the lower judge is protected if the SCOTUS verdict is not unanimous .
Morrison v. Olson is a terrible example of what you would hate to see happen - SCOTUS ruled 8-1, and Scalia famously dissented (and early in his SCOTUS career, at that). Scalia didnt think it was even a close call - this wolf comes as a wolf - and it is generally accepted now that Scalia alone was correct. How would you like to have been a lower court judge, subject to your rule, and to have had to decide that case! Worse, Scalia himself could have been that lower court judge, a couple of years earlier - and have been overruled by SCOTUS 9-0!
I seem to be losing my enthusiasm for your idea . . .
The Supreme Court simply needs to rule that District Court rulings only apply in their District, just as appeals court rulings only apply in their circuit (such as the Ninth Circuit).
I know its not a perfect plan but there needs to be some consequences when judges accept and then rule on cases that clearly have no constitutional foundation.
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