Judge Jon Tigar, a federal district judge, sitting in San Francisco recently ruled that the Trump administration had to resume hearing asylum claims from immigrants regardless of where they entered the United States. In response, Trump said that the Ninth Circuit Court of Appeals, an appellate court, that handles appeals from Judge Tigar’s rulings was a lawless disgrace, and that Judge Tigar is an Obama judge.
In response, Chief Justice Roberts said we do not have Obama judges, or Trump judges, Bush judges, or Clinton judges. Instead, we have “dedicated,” “independent” judges. This claim of Roberts is reminiscent of his position at his confirmation hearings that judges are like impartial umpires calling balls and strikes.
In fact, judges are influenced by their background and it often makes a difference whether their politics are liberal or conservative. Judges are not just umpires and the line between law and politics is often thin.
Nonetheless, I believe that a sizeable majority of decisions in lower courts are unrelated to the political background of the judges, and most appeals are easy, generating no political controversy. Even at the Supreme Court level, where non-controversial appeals are few, many of the appeals do not trigger typical liberal/conservative divisions.
Most important, judges are not party hacks. They do not support or oppose positions taken by the Trump administration because the Trump administration has asked them to do so. They support or oppose such positions because in their legal view the administration is right or wrong.
Of course, Donald Trump does not understand this. He expects judges appointed by him to be “loyal.” He certainly expects Justice Kavanaugh to support the administration when asked to do so. I do not respect Justice Kavanaugh because of his substantive views, his lack of candor in his Senate testimony, and his treatment of Christine Ford. But I do not believe he will decide cases out of loyalty to Donald Trump. There is also no evidence that Judge Tigar or Judges on the Ninth Circuit are party hacks.
It is wrong of Roberts to sanitize the relationship between law and politics and wrong of Trump to insult the judiciary on specious grounds.
it may be important from time to time to praise the independence of the judiciary, legal ficitons do have their place, as does the appearance of impartiality, even if such is another legal fiction.
Posted by: JAMES M KERRIGAN | 11/22/2018 at 06:45 AM