Trump’s unsuccessful attempt to have the courts look into the election irregularities had a welcome effect of making us look into how judging gets done. 

One would think that investigation of judicial decision-making process has to be a natural part of journalistic reporting, but such is not the case. Our government has three branches – executive, legislative, and judicial, yet only the first two are subject to properly intrusive journalistic investigation. The judiciary gets from the press nothing but pious awe. While Trump’s “obstruction of justice” is searched for near and far, and is examined by the press with a telescope and a microscope, the very real obstruction of justice done from the bench in plain view is neither examined nor reported at all. 

Why? We are conditioned from birth to venerate judges, not question them. Somehow, the pessimistic view of human nature that “power corrupts, absolute power corrupts absolutely” which informs American approach to governance is not applied to the judiciary. Instead, the press treats judges as some Olympian demigods, as oracles to be interpreted, not as government functionaries whose follies and misdeeds should be exposed and rectified for the public good. 

Yet to judge by recent posts critical of the Supreme Court, Trump may have caused some cracks to appear on that stone wall of uncritical, awed acceptance. And yet, while problems are acknowledged, there is no constructive, structural criticism of the mechanics of judicial decision-making.

That criticism, I think, should be based on the Constitutional promise of “due process of the law” that was intended to prevent arbitrary judging and ensure that judicial decision-making is fair. Under no interpretation of “due process” can a judge be a party to the case argued before him. A judge must be impartial – which a party to the case cannot be. Hence, a judge has to recuse himself when he discovers that his impartiality may be questioned. On that principle, a judge should not be able to introduce into the case argued before him his own argument. The very purpose of the argument being to sway the judge in its favor, under “due process of the law” the argument submitted for adjudication has to come from parties, not the judge. The function of a judge is to certify as a winner the party with a stronger argument, not to make stronger the argument of the party the judge wants to certify as a winner.  

This is not what happens in federal courtrooms. Judges’ own, “sua sponte” argument is what decides many a case. It happened, multiple times, to me – I briefly outlined my experience in this article from the Attorney at Law Magazine – and I see no reason why Trump’s cases were thrown out not because, upon examination by the court, his claims of voter fraud were found to have had no merit, but because judges wanted to throw the cases out – which they can easily do, merits be damned.

Sua sponte decision-making allows a judge to arrive at any decision whatsoever, since parties’ argument, no matter how valid, proves nothing. While judges take for adjudication parties’ argument (and lawyers get paid tens of thousands of dollars for writing it), what often gets adjudicated is the sua sponte argument of judges’ own concoction, allowing judges to decide cases the way they want to, not the way they have to. 

Press’ investigation of the ways judges operate is long overdue. If Trump forces the press to start treating the judiciary as any other branch of government, looking into how judging is actually done – and more specifically, whose argument gets adjudicated, thus allowing the press to force judges to abide by due process of the law and adjudicate parties’ argument, not judges’ – his presidency will be transformative like no other in American history. 

Lev Tsitrin is the founder of the Coalition Against Judicial Fraud, www.cajfr.org