Let’s see now. United States District Court Judge Carlton Reeves just struck down Mississippi’s law against abortions after fifteen weeks. In his ruling, he used rather radical language, as he declared that the law “unequivocally” violates women’s constitutional rights. He found that there is no “legitimate state interest strong enough, prior to viability, to justify a ban on abortions,” adding that “the Mississippi Legislature’s professed interest in ‘women’s health’ is pure gaslighting.” For added flavor, he stated that the law to protect the unborn reflected “the old Mississippi — the Mississippi bent on controlling women and minorities.” Hmmm. An objective jurist or a political crusader? He was appointed by Obama.
Impartial justice is central to life’s core values. The very notion is engraved into our Constitution, and our Founding Fathers even took steps to preserve judicial impartiality by guaranteeing federal judges lifetime tenure so that they never would fear personal ramifications of issuing unpopular decisions they believe justice demands.
One easily can read between the lines of a frustrated and perplexed Chief Justice John Roberts when he now desperately claims, with patent nonsense and perhaps even a dry sense of humor, that “we do not have Obama judges or Trump judges, Bush judges or Clinton judges.” Of course we do! The ACLU knows that we do. Roberts knows that we do. Everyone knows that. The radical “Progressive” cabal of Democrats and their Left Media stooges know it. Heck, the Obama and Clinton judges know it. Why did The Resistance go to war trying to destroy Clarence Thomas and Brett Kavanaugh? Why does the ACLU always run to the Ninth Circuit, up and down the West Coast, instead of seeking justice from a conservative appellate circuit in the Deep South? As Chief Judge of the Supreme Court, Roberts’s thankless job is to do his best to uphold the rule of law and the appearance of impartial justice. So, in the face of two years, non-stop, of Obama and Clinton judges usurping the Constitutional roles assigned to the legislative and executive branches, Roberts puts on his best poker face and says what he must to salvage the public image of his federal judiciary, the one over which he presides and by which history will judge his tenure. That judgment will be blighted by too many radical-left ideologues motivated more by anti-Trump politics than by objective Constitutional fidelity. So the Chief Justice mouths the mantra expected of him, an Aesop spinning his best fable. (And the fable even has a moral: Don’t book a judge by his cover.) But Roberts knows his denial is stuff and nonsense, and that it sounds ridiculous — even borderline delusional — to deny that today’s federal judiciary is chock-full of Obama judges and Clinton judges on a mission to stop President Trump’s agenda.
Like all the rest of us, Chief Justice Roberts watches daily as justice now is converted to mockery by Left “Progressives” who lost the Presidency in 2016 and now the Senate once again at the ballot box. The pattern is ensconced. Every time the President of the United States seeks to exercise his Constitutionally granted executive authority, the Democrats and their Left allies race to West Coast federal courthouses in search of an Obama- or Clinton-appointed judge, who rapidly enjoins the President’s action with a sweeping nationwide order extending far beyond the judge’s local jurisdiction. Moreover, because the Bushes were not ideologically consistent when naming federal judges — remember Justice David Souter? — even liberal Bush judges can be found in those states. Then, because the decision comes out of a federal district court in California, Washington state, Hawaii, Montana, Oregon, or some other such Western location, the Administration’s court appeal necessarily goes to the federal Ninth Circuit, where a built-in Democrat-Left majority inevitably affirms the lower court’s holding. In that way, the President’s agenda gets tied up for months, if not years, while waiting for his appeal to be adjudicated by the United States Supreme Court.
If the good news was that President Trump arrived in Washington keenly aware of the primacy that he name the right kinds of Supreme Court justices, the sobering revelation he now grasps is how urgently important the lower district courts and mid-level United States appellate circuits also are. For those who do not know how the system is structured, there are 94 United States federal judicial districts where trials are conducted. Each district has several federal trial courts (“District Courts”). Those districts further are gathered into 12 federal appellate circuits plus a special District of Columbia circuit that hears particular federal appeals. For example, back in 1993-1994 I clerked in Louisville for the Hon. Danny J. Boggs, deemed one of the most brilliant and influential federal appellate judges of our era, sitting in the United States Court of Appeals for the Sixth Circuit where he rose to be Chief Judge and also was understood to have been on President Bush’s short list for the Supreme Court seat that went to Justice Thomas. That Sixth Circuit handles all appeals coming from district courts based in Michigan, Ohio, Kentucky, and Tennessee. Only a fraction — approximately one percent — of federal appellate decisions ever get reviewed on subsequent appeal before the Supreme Court. That means, in essence, that the Sixth Circuit becomes the de facto “Mini-Supreme Court” for perhaps 99 percent of all legal matters that get decided in those four states. And so it goes in each of the twelve circuits. Consider that the Supreme Court hears about 80 appeals annually while the federal appellate circuits heard 51,832 appeals during the past measured year. And the district courts handled 363,000 cases during the same period. That is lots of law under the public radar.
Obama substantially remade many of the appellate circuits and district courts in his image during his eight years. Thus, by September 2016, 55 of the 179 federal appellate judges were Obama’s as were 268 of the lower court federal judges. As a result, eight circuits now lean left, four still lean right, and one tends to be centrist. If Mr. Trump did not as fully regard the significance of the lower courts when he began his Presidency, by now he has learned the hard way that he has got to reshape the federal judicial districts and circuits aggressively, not merely the Supreme Court. So far, the President has gotten 53 district judges and 29 appellate judges confirmed in addition to Justices Neil Gorsuch and Brett Kavanaugh. That has been a dramatic achievement for a President’s first two years — approximately one out of every six federal appellate judges now is a Trump nominee — but it still is a comparative drop in the bucket.
Again and again, his ACLU-type opponents have run to Obama or Clinton judges for sabotage. By aiming within the nine states under the ambit of the Ninth Circuit — the nation’s largest circuit governing twenty percent of the American population — they base themselves in an appellate circuit that has 16 Democrat-appointed judges and six appointed by Republicans. In the rare instance that the “luck of the draw” would give appellants a three-judge panel of conservatives from among those six, a further internal appeal from that panel may be taken within the Ninth Circuit for an “en banc” rehearing that allows a larger panel of eleven Ninth Circuit judges to reconsider the initial appellate ruling before it is finalized for appeal to SCOTUS. Thus, we watch the game unfold:
The President fulfills his promise to regulate entry into the country, and the Left runs to a district judge in Seattle, Bush-appointed James Robart who famously once said from the bench that “Black Lives Matter” — who overturns the President with a nationwide injunction and then gets affirmed by the Ninth. The President tries to cut off federal funds from “Sanctuary Cities” that defy federal immigration-enforcement laws, and the Democrat Left runs to Obama-appointed Judge William H. Orrick III in San Francisco; the judge predictably declares the order unconstitutional, and the Frisco appeal necessarily goes to the Ninth Circuit. The President tries to rein in Obama’s DACA, which never went through a legislative process; the Ninth Circuit stops him by affirming Clinton-appointed District Judge William Alsup. The President tries to get the Keystone XL pipeline going, and the Left runs to Montana before an Obama judge, the Hon. Brian Morris, who stops that one, and the Ninth will be there to affirm. Now the President has tried to set some rules at the southern border, requiring applicants for asylum to present themselves at proper ports of entry, and the ACLU grabbed an Obama judge in Northern California, the Hon. Jon Tigar, who predictably stopped it with his own nationwide injunction; he will be affirmed by the Ninth, although the system requires that everyone wait while the Government goes through the motions of appealing and exhausting the process before it may seek SCOTUS review.
The system makes a mockery of the courts, as Chief Justice Roberts now desperately realizes. It creates a cynicism towards the rule of law by manipulating and leveraging judges into pawns of Democrat “Progressives.” Even if the liberal judges are trying to rule impartially, the context behind their very selections undermines their authority. People see that the ACLU and its ilk repeatedly run to Democrat-appointed judges under the umbrella of the Ninth and get the results they want. It creates a terrible aura of cynicism that “the fix is in” and that politics is ruling, not blind justice. Thus, regardless of whether one likes how Judge Timothy J. Kelly ruled recently, when he required the Trump Administration to restore Jim Acosta’s White House “hard pass,” there was something elegant in watching a Trump-appointed judge honestly interpret the Constitution and its Fifth Amendment procedural due process requirements as he honestly believed the Framers intended. That is how honest judges and Constitutionalists judge. Even when they do not like their own holdings, they understand that they are bound by the law and by their duty to interpret it as written, not to fabricate their own law as they personally would prefer.
That is the core philosophy behind conservative judging. In one perfect example among many, Hustler magazine sought to shame the late pastor Jerry Falwell decades ago with a despicable mock advertisement that suggested gross immorality by Pastor Falwell. The pastor sued for libel. The Supreme Court opinion was written by the late great dean of the Court’s conservative wing at that time, Justice William Rehnquist. There could be no doubt that Justice Rehnquist’s heart and soul were with Pastor Falwell in his effort against Public Sleaze and all-around Social Dirtbag Larry Flynt. However, the Rehnquist opinion held for Flynt on First Amendment grounds. Justice Rehnquist may have hated the result, but he felt duty-bound to follow the law as Constitutionally prescribed. Hustler Magazine v. Falwell, 485 U.S. 46, 108 S. Ct. 876 (1988).
The system breaks down, by contrast, when Leftist ideologues named by Obama and his activist ilk seem to replace objective contemplation with agenda-driven politics. For all we know, some or all of the Obama judges really are trying to get the law right — but the entire context casts public doubt on the courts’ impartiality. That is a terrible thing. With two years of increasingly predictability, it becomes a game:
(i) The President executes his Constitutional duty as he sees fit after soliciting his advisors’ counsel.
(ii) The Left runs to an Obama or Clinton judge in the West to legislate from the bench and to enjoin the White House from its intended action.
(iii) The system stops until the left-lopsided Ninth Circuit rules, and it predictably rules against the President.
(iv) The President either backtracks completely, adhering to the Constitution’s separation of powers, or he appeals to the United States Supreme Court, which can take a year for resolution — if it even agrees to grant certiorari — meanwhile leaving the nationwide injunction in place.
Over these next two years, the President must continue naming judges to vacancies in the lower and appellate federal courts with the same alacrity that he has demonstrated when filling Supreme Court openings. He has 53 United States Senators, and NeverTrumpers Jeff Flake, John McCain, and Bob Corker no longer are among them. (Joe Manchin now may be presumed to have rejoined The Resistance for the next five years and eight months.) With Mitch McConnell at the helm, nobody does it better. They have got to get those judges onto the benches.
One of the endless quirks among the system’s byzantine rules for naming federal judges is the so-called “blue slip” tradition that tends to bar any judicial nominee from going forward unless he or she has the quasi-endorsement of both United States Senators from his or her state. That has tied up the President’s efforts to fill Ninth Circuit vacancies because, with California for example, it is impossible to get Kamala Harris and Dianne Feinstein to approve conservative Trump nominees. But there is a creative solution to that problem: California is not a regular state. The blue slip tradition assumes United States Senators emerging from races contested between two parties. California, though, is a one-party state. Both Kamala Harris and Dianne Feinstein were elected to their seats in races where, under the state’s rules, no Republican was listed on the ballot. Instead, each ran against a fellow Democrat. As a consequence, the “blue slip” rule certainly should not apply to California. The President should just name the judges he likes for the vacancies in California and on the Ninth. And, in the face of an unbridled Resistance, everywhere else, too.
In so many ways, President Trump has reversed so much of Obama’s eight years, leaving so much as if Obama never were there. We are out of the nonsensical Paris Climate travesty, out of the Iran Deal, out of the bad NAFTA. Regulations have been reversed in grand style. The individual mandate is gone. Tax policy changed. The IRS is honest and no longer weaponized against political opponents. The Left media are exposed. The unemployed have returned to work. Food stamps no longer are a religious sacrament. College students falsely accused of rape now may defend themselves. There will be control of the southern border. Cuba and Venezuela no longer are our best two friends in the world, and Israel no longer is our worst pain. ISIS no longer rules half of Syria, and Putin has stopped expanding into his neighboring countries. NATO is paying some bills. For two years we have been spared Trayvon Martin dramas and the scene of cities burning like Ferguson (Michael Brown, “Hands Up, Don’t Shoot!” — never happened and no indictments) and Baltimore (Freddy Gray, all accused officers acquitted). We have closed down the PLO office in Washington, no longer are supporting terrorism by funding the UNRWA in Gaza, walked out of the terrorist-enriched UN Human Rights Council, moved America’s Israel embassy to Jerusalem, and voted against the annual UN resolution against Israel in the Golan Heights. White House visitor invitations are extended to patriots, not to people who sing lyrics extolling cop-killing, and overpaid fools who are given millions of dollars to throw or run with a ball are denounced when they disrespect our flag and national anthem.
It increasingly falls on the President to focus on making the lower and mid-level federal courts every bit as Constitutionally faithful as he has worked to make the Supreme Court. The way he marks the federal bench these next two years will play a major role in bench-marking his place in history. And if he succeeds, he might even improve Chief Justice Roberts’s place in history by creating a more balanced court that places the law and objective fidelity to the Constitution above Saul Alinsky’s Rules for Radicals.