A Note to Readers: Part One appeared in The American Spectator on December 11, 2019. It is worth the full reading for complete background. A summary appears below in “Section 1: The American Legal System.”
NEWS ITEM: January 8, 2020 – New York
Court Blocks Trump Push to Restrict Green Cards for Welfare-Tapping Immigrants
The Trump administration issued a new rule in August 2019 that would deny immigration “green cards” to people who come here and live on government assistance for at least 12 months in a 36-month period. For more than a century, it has been American policy to deny immigration to people who would come here and become a “public charge.” See, e.g., Immigration and Naturalization Act § 212(a)(4), codified at 8 U.S.C. § 1182(a)(4). Trump simply tried to define a “public charge” with some clarity. The Democrat Left immediately raced to forum-shop for an Obama–Clinton judge to enjoin the rule. They went to New York City, where they got U.S. District Judge George Daniels, who previously stepped down from a local judgeship to be counsel to former New York City Mayor David Dinkins and who later was named a federal judge by Bill Clinton. Unsurprisingly, Daniels not only barred the rule but converted his local decision in a New York courtroom into a nationwide injunction. Even though the U.S. Fourth Circuit Court of Appeals in Virginia struck down just such an injunction, the “nationwide” injunction by Clinton Judge Daniels leaves the injunction in place until it is struck down by either the U.S. Second Circuit, which alone has jurisdiction over appeals from New York federal district courts, or ultimately by the U.S. Supreme Court. On Wednesday, the Second Circuit ruled that it would refuse to lift the local Clinton judge’s injunction that has tied up the rule for half a year. The three Second Circuit appellate judges who left the Clinton district judge’s nationwide injunction in place are (i) the Hon. Amalya L. Kearse, named to the bench by President Jimmy Carter; (ii) the Hon. Guido Calabresi, named by President Bill Clinton; and (iii) the Hon. Susan L. Carney, named by President Barack Obama.
1. The American Legal System
To review from Part One: Under America’s system of government — both as instituted on the federal level and on the respective states’ levels:
The laws governing our civil society come primarily from two main sources. First, our Founding Fathers ratified our Constitution, and the legislative branch has enacted laws (“statutes”) over the years that have been codified in the “United States Code.” Second, when courts have been presented with disputes for which there simply is no enacted law that applies, the courts necessarily make a stop-gap ruling that creates a new law (“common law”) that will remain the law of the land until the legislature steps in to address the vacuum and either ratifies the common law by enacting a statute to the same effect or instead enacts a law that takes a conflicting position. That new statute then overrides the disfavored common law and becomes the new governing rule. Whatever the law, statutory or common, the rule of stare decisis demands that courts rigidly follow that law as precedent except in the most extraordinary of legal situations.
The court system — both federal and in the respective states — is set up primarily along three levels. Litigants first bring their matter to a trial court, presided over by one judge. On the federal level, the trial court is called the “U.S. District Court.” States have different names for their respective trial courts; in California, for example, such a court is called the “Superior Court.” After the final adjudication of the dispute, the loser may appeal to a second level, presided over by a panel of three judges. On the federal level, the appellate court is called the “U.S. Court of Appeals for the [ordinal number] Circuit.” There currently are 13 circuits: 11 regional circuits, the D.C. Circuit, and the Federal Circuit. Some federal circuits encompass more states, some fewer. For example, the Second Circuit encompasses New York, Connecticut, and Vermont. The Sixth Circuit, where I clerked, encompasses Michigan, Ohio, Kentucky, and Tennessee. The hopelessly oversized Ninth Circuit, which should have been divided long ago and still should be into three circuits, encompasses California, Washington State, Oregon, Arizona, Nevada, Idaho, Montana, Alaska, Hawaii, Guam, and the Northern Mariana Islands.
An appellant never knows which three judges will be assigned to an appeal. Typically, because the circuits are under-staffed — whether because Congress will not allot more funding to hire more appellate judges or because they cannot manage to confirm judges to vacancies awaiting assignments — appellate panels do not always include three appellate judges from that circuit. Rather, the circuit may assign two of their appellate judges to an appeal, and they may pull in a district trial judge from within their geographical region or an appellate judge from an outside circuit to complete the panel. The Second, Third, and Seventh Circuits each serve a regional population of approximately 25 million Americans. The First Circuit (Massachusetts, Rhode Island, Maine, New Hampshire, and Puerto Rico) serves approximately 14 million. The Fifth (Texas, Louisiana, and Mississippi) and Sixth Circuits, approximately 32 million each. The Ninth Circuit? 62 million. Most appellate circuits have between 11 and 15 appellate judges formally authorized by Congress to sit on those respective circuits; the Sixth has 16, and the Fifth has 17. The Ninth Circuit has 29.
A U.S. Circuit Court of Appeals is equivalent to a mini–Supreme Court in that its decisions create binding precedent for all case matters subsequently litigated in the states that circuit encompasses. For example, a Sixth Circuit opinion on a contract dispute or tort injury arising in a manufacturing plant in Ohio or Michigan creates binding precedent for a future contract dispute or tort injury arising in a bourbon distillery in Kentucky or a whiskey distillery in Tennessee. A capital crime appellate holding in Texas also applies to a similar legal dispute in Louisiana.
When a party loses a federal appeal, he or she has three basic options: (i) accept the loss, (ii) ask for a rehearing en banc, or (iii) appeal to the U.S. Supreme Court. An appellant’s request for a “rehearing en banc” basically seeks a second try, asking that all 11 or 12 or 17 appellate judges in the circuit agree to hear the appeal all together, “en banc,” in the hopes that the broader diversity of judges may come to a conclusion that differs from the one handed down by the prior panel of three, who may have been — as chosen by the luck of the draw — among the three most liberal or three most conservative jurists in the circuit. Almost all en banc requests are denied, but a few are granted each term. Sometimes, the en banc panel reverses the prior three-judge panel, sometimes not.
And then, finally, the loser can appeal to the Supreme Court of the United States (SCOTUS), asking that certiorari be granted. Whereas all appellants are entitled to be heard at the middle level on an appeal from the trial court, almost none ever gets accepted for rehearing by the Supreme Court — that is, certiorari almost always is denied. In the highly rare circumstance when certiorari is granted — approximately 1 percent of all the thousands of appeals that are directed to SCOTUS each term — that last level of appeal is heard by a panel of nine judges whom we call “justices.”
That is the system of justice in our country: the structure of the courts, the interplay of common law and statutory law, and the role of stare decisis.
2. The Impact of Activist Judges “Making It Up As They Go Along”
As soon as we begin to perceive that judges are not following the pre-established and properly enacted rules of the game but instead simply are “making up the rules they feel like making” as we play along, the entire system of justice collapses amid a general sense that the system is rigged and unfair. Thus, the system validates itself by restraining judges from deviating, requiring them to adhere to the guiding principle of stare decisis. Yet we all are witness to wildcat “judicial activism” that violates the law’s sanctity when “activist” judges decide to sweep the law aside and instead to fabricate their own ersatz “law,” guided by their “gut” sense of what they personally “feel” is right or wrong. By refusing to honor the constraints placed upon them by precedential common-law holdings and legislated statutory enactments, these “judicial activists” corrupt and pervert the system by leaving the public unsure as to what “ground rules” govern our society. This abuse, corruption, and perversion of our justice system manifests most glaringly through the widespread nonstop three-year manipulation and leveraging of “the Clinton and Obama Judges” and their overreaching nationwide injunctions.
Every president nominates federal judges to fill vacancies. Once the Senate confirms them, those nominees are judges for life. The purpose of life tenure is to maximize impartial justice by assuring a jurist that, if judicial fairness requires handing down a very unpopular ruling like desegregating public schools, his or her continued employment will not be threatened by public outrage. Despite all the efforts aimed at assuring judicial impartiality — subjecting a judicial nominee to Senate confirmation, providing life tenure, imposing the rule of stare decisis that binds judges to precedent handed down by others —we are living in the era of “the Resistance,” and Democrat-appointed judges have allowed themselves to become part of the corrupt “gaming” of the system.
To be sure, all federal judges intend to rule fairly, “calling ’em as they see ’em,” whether on low-publicity contract disputes, tort claims, property contests, and the like. No corruption stems from bribery or blackmail. Nevertheless, “the Resistance” has pursued a concerted strategy marked by “forum-shopping” to maximize probabilities that their appeals against Trump administration rules will be heard by judges who already are deeply prejudiced against Trump, having been appointed to their life benches by Jimmy Carter, Bill Clinton, and especially by Obama — all having been chosen for their leftist worldviews.
3. Is This Justice (for All) … Or Is This Just-As (We Feel)?
Republican conservatives want strict constructionist judges, originalists, judges who honestly and impartially look at the laws — the statutes, the precedents, the agency rules — and then interpret the text fairly and objectively. Conservatives then want those judges to apply that honest understanding to the facts being contested before them. Inasmuch as reasonable people may differ reasonably, that means that true conservatives sometimes will be deeply disappointed when true strict-constructionist judges rule in ways that give liberals a victory. Honestly, if a conservative wants a conservative outcome in court, the conservative needs to work to elect a conservative legislature that passes conservative laws. Just as conservatives do not want Leftist Obama–Clinton Judges “making it up” on the fly, following their “guts” rather than the laws, honest consistency means that some conservative judges will disappoint. If there were days that a Scalia, for example, disappointed conservatives, it was because he refused to “make it up” but instead read the law as he understood it to the best of his impartial ability. That was justice.
But let us consider whether or not this is justice:
The president fulfills his promise to regulate entry into the country by enacting a travel ban from certain countries that disproportionately breed terrorism, and the Left runs to find a liberal district judge in Seattle, part of the Ninth Circuit region. They get Bush-appointed James Robart, who famously once said from the bench that “Black Lives Matter,” and he overturns the President with a nationwide injunction. He then gets affirmed by the then-Left-dominated Ninth Circuit.
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, within the Ninth. He declares the president’s order unconstitutional and imposes a permanent nationwide injunction.
The president tries to set some rules at the southern border, requiring applicants for asylum to present themselves at proper ports of entry, and the ACLU grabs an Obama judge in Northern California, the Hon. Jon Tigar, who promptly stops it with his own nationwide injunction.
The president exercises his executive authority to reallocate military funds to build the border wall he promised. Federal District Judge Haywood Gilliam of the Northern District of California issues two rulings against President Trump’s effort, issuing a nationwide injunction. Gilliam was appointed by Obama. Meanwhile, a similar ruling in Texas finds El Paso–based U.S. District Court Judge David Briones likewise declaring the president’s action “unlawful.” Briones was named by Clinton.
The president tries to rein in Obama’s DACA, which never went through a legislative process. The Ninth Circuit stops him by affirming the lower court ruling against the president by Clinton-appointed District Judge William Alsup. Judge Kim Wardlaw, a Clinton campaign volunteer named a judge by Clinton, wrote the panel’s opinion. Wardlaw was joined by Judge Jacqueline Hong-Ngoc Nguyen, an Obama appointee, and by Judge John Owens, also an Obama-named judge.
Entrepreneurs sue the president, claiming that his hotels enjoy unfair advantage against them because he is president. News reports proclaim that “Federal Appeals Court Rules Against Trump in Emoluments Lawsuit.” On closer look, the court’s vote was 2-1. Judges Pierre Leval, initially appointed by Carter for a district judgeship and thereafter by Clinton to the appellate bench, and Christopher Droney, initially appointed by Clinton for a district judgeship and thereafter by Obama to the appellate bench, voted against Trump. Judge John M. Walker, initially appointed by President Ronald Reagan for a district judgeship and thereafter by George H. W. Bush to the appellate bench, dissented.
The president exercises his executive authority to allow the indefinite detention of certain asylum-seekers. District Judge Marsha Pechman, named by Clinton, declares the president’s effort unconstitutional. The three-judge Ninth Circuit panel is comprised of Judges Mary Schroeder, named by Carter, William Canby, named by Carter, and Morgan Christen, named by Obama. The president loses.
The Resistance undertakes to harass the president by demanding his tax returns from past years. News reports proclaim that “Federal Appeals Court Rules Against Trump on Taxes.” On closer look, the court’s vote was 2-1. Judges David Tatel, appointed by Clinton, and Patricia Millett, named by Obama, voted against Trump. Judge Neomi Rao, appointed by President Trump, dissented. In another article titled “Judge Rules Against Trump in Lawsuit to Block Democrats’ Subpoena for Financial Records,” we read that Judge Amit Mehta endorsed Congress’s broad authority to investigate the president. Judge Mehta was named by Obama.
The president initiates a rule prohibiting shelters from facilitating abortions for children held in government shelters after entering the country illegally. The appellate panel rules against the president. The panel was comprised of Judges Sri Srinivasan, Robert Wilkins, and Laurence Silberman. The first two were named by Obama.
The president wants to resume the federal death penalty. U.S. District Judge Tanya Chutkan, named by Obama, stops it. It now is pending appeal.
The president initiates a rule that requires immigrants seeking entry visas first to prove that they will have health insurance or that they otherwise can pay for their health care, and U.S. District Judge Michael Simon, named by Obama, stops it with a nationwide injunction from his courtroom in Portland, Oregon.
The president implements a rule that would deny permanent residency to immigrants deemed likely to depend on public welfare. In an article headlined “Court Rules Against Donald Trump’s Directive on Immigrants,” we learn that Judge George Daniels of the U.S. District Court in the Southern District of New York, a former Dinkins adviser and thereafter a Clinton appointee, ruled. In an article headlined “Court Blocks Trump Push to Restrict Green Cards for Welfare-Tapping Immigrants,” we learn that an amalgam of a Carter judge, a Clinton judge, and an Obama judge refuse to release the nationwide injunction.
You can’t win ’em all. But even more disturbing than the ubiquitous predictability of activist Obama Judges and Clinton Judges is the remarkable consistency that sees all these cases ending up in courtrooms of Obama–Clinton Judges. It is not as though Obama and Clinton named 98 percent of all federal judges in the United States. Reagan named some who still serve. Bush named some. The other Bush, too. By now, President Trump also. Yet these cases keep ending up in Obama–Clinton courtrooms, in states that fall within the jurisdiction of Obama–Clinton-dominated appellate circuits. Once there, these very local judges exercise a level of omnipotent authority virtually unprecedented in its consistency before the Trump era, issuing permanent nationwide injunctions. It is tragic that few in judicial authority realize the damage this process is doing to the rule of law.
How in the world is all of this justice? Even if — an enormous “if” — each respective Carter Judge, Clinton Judge, and Obama Judge honestly truly has been ruling on Trump administration matters to the best of his, her, and their abilities, the system still has been perverted and corrupted by the process of litigants cherry-picking their judges and forum-shopping their appellate circuits. As someone who has devoted his entire life and loving passion to The Law — to the loving study and focused practice of American law and to the loving study and loving practice of Judaic law — it pains me that we now are beholding a concerted scam that manipulates the foundations of the very system of “blind justice,” perverts justice, and ultimately reveals itself as corrupt. It cheapens the judiciary in the eyes of the public by converting brilliant jurists with great minds into hand puppets and marionettes. In this vile way, the Resistance has tied up a president for an entire first term, while he awaits the ever-slowly grinding sands of justice to send these Clinton-and-Obama-Judge cases up to the Supreme Court. There, these cases will be heard by nine justices who include among them the single most biased and prejudiced judge in the entire system, Ruth Bader Ginsburg, who openly despises the president and even publicly has called him insulting names. He has no chance with anything that comes near her. She publicly has called him a “faker” and even publicly criticized the media for not going after his taxes. “He has no consistency about him,” Ginsburg told CNN. “He says whatever comes into his head at the moment. He really has an ego.… How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.” Finally, her colleagues on the left told her to shut up because her manifest prejudice would be forcing her to recuse from cases involving Mr. Trump. She is the perfect Clinton–Obama Judge icon, not even going through the motions of objective fairness. That is what our system has come to.