As I write this at around 3 p.m. ET, Trump hasn’t yet tweeted about “Liddle John Roberts” and how his decision in the ObamaCare case six years ago basically makes him an “Obama judge” retroactively.
But it’s coming. Pool’s open on when that tweet appears, in case you want to place any pre-holiday drunken wagers.
This dispute reminds me of the uproar yesterday over the White House statement on Saudi Arabia: Trump has a point, but his approach to it is unbecoming of the presidency.
Wow. After Trump said he was going to file a complaint about the 9th Circuit Court, Chief Justice John Roberts said: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges…" Per @JoanBiskupic pic.twitter.com/xK2o8GMSI8
— Kaitlan Collins (@kaitlancollins) November 21, 2018
That was a reaction to POTUS complaining yesterday after a west coast judge blocked his new asylum policy, “This was an Obama judge, and I’ll tell you what, it’s not going to happen like this anymore.”
It’s ironic that Trump would raise the concept of “Obama judges” or “Trump judges” this week when it was a Trump judge who ruled against him in the Jim Acosta case. But that aside, are there such things in reality as “Obama judges” and “Trump judges”? Er, yes, of course. “Left-wing” and “right-wing” would have been better adjectives since federal judges are far more loyal to their ideology than they are to the particular president who appointed them, but you take Trump’s point.
2nd Roberts sentence should end, “and whose sense of how to do that varies in predictable ways that generally line up with who appointed them.” https://t.co/6aIJrfks4s
— Ramesh Ponnuru (@RameshPonnuru) November 21, 2018
Also, and needless to say, the higher up the ranks of the judiciary you go, the more apt you are to find judges hewing to rigid ideological lines. The more important a vacancy is, after all, the more rigorously a nominee will be vetted by the White House for ideological devotion. And because appellate judges aren’t bound by precedent to the same degree lower-court judges are, it stands to reason that ideology will have more influence at the upper levels of American jurisprudence. That’s how Trump ended up on the wrong end of the Acosta ruling. Judge Timothy Kelly is a “Trump judge” but he serves at the lowest level of the federal bench, on the district court in D.C. District court judges are stuck following precedent and the precedent this time favored Acosta.
But I digress. Do you think Americans are under any illusions about whether “left-wing judges” and “right-wing judges” exist? Look at these partisan needles move as control of the White House changes hands:
No one who follows politics closely is naive about the role of ideology on the courts. But not everyone follows politics closely, and respect for court rulings depends in part on public perceptions that those rulings are generally fair and impartial. That’s what Roberts is worried about, but Trump doesn’t worry about it at all. To the contrary, his standard reaction whenever he loses a contest is to question the legitimacy of the process. He warned before the election that the system might be “rigged” against a Trump victory, then when it produced a victory for him he wondered if he lost the popular vote because millions of illegal immigrants somehow voted without detection. There’s no such thing to Trump as losing “fair and square.” The “Obama judge” moniker is part and parcel of that. And while there’s some truth to the label and the public knows it, Roberts doesn’t want judicial decisions being seen as products of partisanship — or, worse, as rewards for political patronage, which is what the term “Obama judge” implies. Bad enough that Americans view court rulings increasingly as politics by another name. Imagine if the “Obama judge” terminology gradually convinces them that judges are expected to rule in favor of the particular president who put them on the bench, as a personal thank you for the appointment. The federal judiciary isn’t Tammany Hall.
All of which is a long way of saying that I think Roberts has his new colleagues Neil Gorsuch and Brett Kavanaugh in mind here. He’s spent 18 months watching Trump rant publicly about Jeff Sessions for not protecting him from Russiagate. He read a news story less than 24 hours ago alleging that the president wanted to sic the Justice Department on his political enemies. Trump can’t conceive of independence for political appointees who “owe him,” even when they work for institutions that are supposed to be independent from political pressure. So imagine what’s in store for Gorsuch and Kavanaugh, the two most momentous appointments of his presidency (and the second of which his party want to war to make happen), when they inevitably end up ruling the wrong way on some Trump policy. They’ll be demagogued endlessly for it. It’ll be treated as a betrayal, even if their objections to the policy fall along originalist/conservative lines. Because there’s no such thing to POTUS as losing fair and square, Gorsuch’s and/or Kavanaugh’s opinions will necessarily need to be processed as “treachery.” Roberts has some experience himself with this phenomenon from the ObamaCare decision but it’ll be much worse for the two newest appointees since Trump does view their service (and everyone’s service) in terms of political patronage. Roberts is anticipating that and trying to preempt it by rejecting the idea of a “Trump judge” before it takes further root.
And just as I’m writing that at 3:55, I see the president has tweeted. The pool has closed before it opened.
I look forward to the next chapter of this spat between the most powerful policymaker in the U.S. government and, uh, the president. Exit question: Why would Trump, a guy who’s convinced that judges rule based on petty personal/partisan considerations, want to pick a public fight with the new swing vote on the Supreme Court?