Judicial Independence Under Attack
Judicial independence is under attack in America right now. The president and his supporters are calling for impeaching judges -- not for any "high crimes and misdemeanors," but instead for issuing rulings they don't like. And today, in a remarkable "be careful what you wish for" moment, a Republican senator has announced he will introduce a bill to restrict federal district judges from making any rulings that apply nationwide. This is somewhat amusing, seeing as how Republicans use this tactic all the time when there is a Democrat in the White House.
The American system of government guarantees independence for the judiciary in a number of ways. The foremost of these is the lifetime tenure judges are granted, after being nominated by a president and confirmed by the Senate. They are not and never have been elected officials -- their only connection to the voters is a secondhand one, through the appointment and confirmation process. This insulates them from politics, which is an important pillar of our democracy. Judges aren't supposed to consider whether their rulings will be popular or not, merely that the law is being followed (as they interpret it).
This bedrock democratic principle is under attack. Donald Trump is (as I often point out) the world's biggest sore loser. He hates to lose, and he especially hates to lose when he is powerless to change the outcome. So when a judge rules against him, he lashes out, calls them names, and publicly pushes for them to be impeached. He throws a tantrum, in other words.
Impeachment is the check and balance designed to counter the lifetime tenure of federal judges. If a judge abuses his or her power in any way, then Congress can remove him or her from the bench. But this is incredibly rare (as it should be) and so far has been limited to serious misbehavior and outright crimes. If a judge is convicted of a crime and sent to jail, he or she will still collect their judicial salary until they either resign or are impeached by the House and convicted by a two-thirds vote in the Senate. This is supposed to be used only in the case of serious wrongdoing -- not because the judge issues a ruling one political party disagrees with.
Thankfully, that bar is set so high that no federal judges are in danger of being removed for purely political reasons. The Republicans only have 53 senators, which is 14 shy of what they'd need in order to do so. The House of Representatives could conceivably impeach a judge (in a fit of partisan pique) but that's as far as it would go.
Which brings us to the other attack on judicial independence. Here's the story:
Sen. Josh Hawley (R-Missouri) said Thursday that he will introduce legislation to restrict local district court judges' ability to issue nationwide injunctions that he said "stymie" President Donald Trump's agenda.
. . .
Hawley, on Wednesday, criticized what his office described as a "blanket overreach of local district court judges in issuing nationwide injunctions that tie the hands of the executive branch."
Speaking to a right-wing podcast, Hawley said district courts don't have the power to "issue an order that binds the executive branch for the entire nation."
"What needs to happen is one of two things: Either the Supreme Court needs to intervene and make clear there's only one court that can issue rules for the whole country, that's the Supreme Court, that's why we only have one of them," he said. "And or, if they won't do that, Congress needs to legislate and make clear that district courts do not have the ability to issue these kinds of injunctions."
Funny, I don't remember Senator Hawley complaining much when it was conservative judges issuing nationwide injunctions on President Joe Biden. Which happened fairly frequently, on all sorts of issues. Conservatives would go judge-shopping, select the judge they wanted to appear before, and file cases in that district (one in particular, in Texas, was where all the abortion cases were filed, since the judge was stridently anti-abortion). The judge would oblige by issuing an injunction that covered the entire nation. Republicans didn't pioneer this tactic (both parties have used it), but they certainly did make as much use of it as they could, when a Democrat was in the White House. So now they're annoyed that the shoe is on the other foot?
Let's say Hawley is serious, and does introduce such a measure. Let's say it makes it through Congress and is signed into law. What are Republicans going to say about that when a Democrat retakes the White House at some future date? No longer will they be able to halt presidential actions by filing a case before one friendly judge. No longer will they be able to "stymie" a Democratic president's agenda. And, no doubt, they'll whine and complain about that just as loudly as they are whining and complaining now. As I said, be careful what you wish for, Josh.
Judges are independent for a reason. The reason is to isolate them from politics. Lifetime tenure means they don't have to worry about being fired by an irate president. This is also why they are not elected. They don't have to worry about public opinion -- just the law. A judiciary that always ruled for the party in power would be nothing more than a sham -- or a very bad joke. Presidents aren't supposed to be completely unchecked in their actions. When they overstep the boundaries of the Constitution, they need to be reined in. The "Sore Loser In Chief" can throw all the tantrums he wants, but that's the foundation of our democracy. Presidents don't get to order judges which way to rule. Judges do (occasionally) get to order the president to either do or not do something. Judicial independence is the one bulwark against politics becoming all-powerful in the American system.
-- Chris Weigant
Follow Chris on Twitter: @ChrisWeigant
Republicans in both Congress and the Judiciary better not give Trump too much of their power because once he has it they ALL become expendable or even a threat to him.
Nice work, but a little too idealistic, I think. Yes, federal judges have lifetime tenure to insulate them from partisan politics. Yes, it's a travesty to demand that federal judges rule according to the dictates and policies of the incumbent administration.
Wait, what? Don't we all accept that very many federal judges are thought to be, um, 'partisan'? Don't both parties make a huge effort to nominate new judges whose political leanings agree with those parties? Isn't that where venue shopping comes in, as you note about the conservative Texas federal district?
Sure, it seems wrong to threaten to impeach a judge who rules against the administration's positions. But why doesn't it seem wrong that both parties essentially 'judge-shop' for judges and Supreme Court justices whose legal philosophies lean towards the conservative or liberal sides?
Isn't this impeachment nonsense a logical consequence of the agreed dogma that a judge is wholly political, and his judgments should be evaluated against that kind of measure?
For one thing, there’s a big difference between the Legislature seeking to emasculate the Judiciary’s ability to provide “checks and balances” versus (some) Legislators seeking Judicial venues that give them their best chances at success.
I also think agreed dogma that a judge is wholly political is not at all agreed upon and the number of Justices that ended up confounding those that appointed them are legion.
Other than that I thought it was a splendid comment.
Is anyone surprised that the president with by far the most aggressive and egregious abuses of executive power that violate federal statutes as well as the United States Constitution wants to undercut the power of the federal judiciary? Rhetorical question. This one (still) ain't rocket science. The United States Constitution outlines a system of checks and balances wherein there is a separation of power between co-equal branches of government.
First off, there is no judge who is going to be removed from the bench for the mere act of upsetting President Adjudicated Rapist 34-Time Convicted Felon Trump by ruling against him, but the Castrated Caucus and Trump administration "unelected" goon squad should definitely please waste a whole lot of time and taxpayers' dollars attempting to impeach multiple judges while prattling on and on about it on right-wingnut echo chamber propaganda media and accomplishing not much else beyond creating a tangible record of your intent to ignore the law. Boo effing hoo.
Secondly, an excellent way to avoid losing a ruling from the bench (or a jury) as a citizen is to cease and desist from committing multiple instances of fraud (particularly on paper) or incessantly flapping a big mouth connected to a small brain (on social media or while being filmed) and disparaging a person repeatedly, while an excellent way to avoid losing a ruling from a Court as a president is to cease and desist from issuing executive orders on paper that are in direct violation of federal statute and/or the rights of We the People as obviously set forth in the United States Constitution. In other words: If you keep losing repeatedly in Court as a citizen and as a POTUS, you just might be the source of your problem.
Lastly, Diaper Don will be shitting his pants (oh, wait, he already is), ranked by historians as the worst president in history (oh, wait, he already has been), drooling saliva into a bedpan, being spoon-fed Gerber pureed carrots out of a glass jar, and trying desperately to remember his own name when many of the judges he's whining about now are still making rulings from the bench against him and his deplorable spawn.
MtnCaddy on [3-5]
Thanks for the compliment!
On [3], saying that a legislator has a perfect right to "seek judicial venues that give them their best chances at success" concedes my main point, I think: in the Constitution's imaginary world, judges simply interpret the law as best they can, without political bias. In that world, there's no such thing as one venue being better than another because all venues are essentially unpredictable as to how their judges will rule on any case, political or non-political. In the real world, as you say, the more favorable venues are well known and eagerly sought out by both parties.
On [4] I was using a little hyperbole, but only a little. Yes, many of the federal judges appointed by a president may issue a ruling in a case that doesn't align with the politics of that president. But the fact is, when that happens it's noticed. Almost every report on a federal ruling that involves a political issue (and of course there are very many legal cases even on the federal level that are hard to label as 'political') includes a little note about which president appointed that judge.
That allows the public to follow the game of expectations - the dogma may be putting it a little too strongly, I agree - that a judge will of course rule according to the politics of the administration that appointed him or her. When it doesn't happen, it's considered to be news - that is, it's unexpected.