Opinion

Roberts Is Wrong About Federal Judges and Here Is the Plan to Fix It

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Posted: Dec 02, 2018 12:01 AM
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Roberts Is Wrong About Federal Judges and Here Is the Plan to Fix It

President Trump upsets the establishment every time he opens his mouth and utters the truth that the establishment does not want discussed except in back rooms or in whispers at their Georgetown soirees.  The courts are highly political and have gotten worse in modern times.  Roberts needs to do something about it.

Roberts' statement in defense of the judiciary was dictated by his position as Chief Justice of the Supreme Court, but it is an outright falsehood. He knows these cases are forum shopped unless he has been living in denial.  Why were cases on the limitation of people coming to America from certain designated countries brought to the courtrooms of judges in Hawaii and Maryland? It can be argued that the plaintiffs were in the area. But even if they were, those plaintiffs were ginned up by national organizations that supplied the resources and the legal counsel to argue the case.  

We can go on endlessly defining this issue.  The judge who made the recent Keystone pipeline ruling was an Obama appointee, for example. Please correct me if I am wrong, but the only ruling by a federal judge not appointed by Obama that has gone against Trump was the one regarding the banning of CNN’s Jim Acosta from the White House.  That ruling just stated Acosta needed to have due process and thus the WH set up new rules to handle unruly members of the press.

Roberts need only turn to his side and he will see Justice Ginsburg who has gotten herself involved in many political tussles outside the court.  On his other side, Justice Thomas has raised his own political commentary, but is still no match to RBG.  

Just because Roberts detests the political facet does not mean he should live in denial of the reality he knows exists.  The political aspect has risen to a new level in recent times as there are two distinct judicial philosophies.  The first is that of a strict constructionist invoked by most Republican appointees.    The other is that of a living Constitution where most Democrats contend there needs to be an adaption of the rules to modern times and damn the actual writings.  Then there is the RBG wing who just believes the Constitution stinks and let’s do it another way. The power of the courts has become outsized in recent years because of these political strains in the judiciary.  

This has caused the process for filling every judicial appointee to be fraught with political intrigue.  The nominees attempt to hide their personal biases, but anyone paying attention knows that is a charade.  Each party nominates someone fully vetted in their political philosophy. 

Roberts also has to deal with the change in the definition of what a state attorney general does for a living.  They now spend a significant amount of their time and resources suing the president or Congress for any act taken if they are in the opposing party.

The biggest problem is that there are 673 district federal judge positions, though not all are currently filled.  Many of them now believe they are the chief judge for the entire country and can make rulings that determine the law for everyone.  Because this attitude is rampant, the people who wish to get a proper ruling for their cause go to a courtroom which will be friendly to them.  They then can sit on a victory until it goes to an appeals panel, the entire court of appeals and then maybe the Supreme Court.  This process can take a couple years or more.

In fact, as I have pointed out previously, this was the policy Obama adopted for his public policy after the Republicans took over Congress.  He would sign an executive order and, in effect, tell Republicans “sue me, by the time you get a court ruling the damage will be done.”  This is exactly what he did with DACA and that is why we still have his policy in place which Obama himself said he could not do.

Yet Roberts still operates the courts as it was 100 years ago.  They take certain cases for the session and only deal with certain cases during the term if taken up in certain situations.   If you know the Supreme Court is not going to see your case for two to three years and you can get a friendly ruling from a partisan judge, then why not go for it?

Here is a suggestion.  If a federal judge decides they can omnipotently make decisions for the country and reverse or put on hold a presidential executive order or congressional law, the ruling must be reviewed by an appellate panel within a week.  If the appellate panel decides to ride with the federal judge’s opinion, then the full appellate court must issue an opinion within two weeks.  That would then go to the U.S. Supreme Court which would have a month to hand down a ruling or they could stay the action of the lower court and get to the full opinion at a further time.  They could not just boot the decision without taking it up.  If they don’t take it up, that would stay the decision of the lower court until they do.  

The other cases not related to judge’s rulings to stop executive orders or congressional laws would continue to wind their way through the courts under the current process.  

This would put an end to the benefit of forum shopping that allows a plaintiff the ability to put a stop to executive orders or congressional laws. These injunctions can eliminate actions with a time queue like the decision of the judge to limit the administration stopping the large groups flooding the border from Central America. By the time the decision is appealed the migrants are already in the country and absorbed into neighborhoods never to be seen again. It would also halt presidents from taking executive actions that are constitutionally questionable knowing they will not be properly reviewed for years.

Roberts is still operating the court as if he were John Marshall from two centuries ago or William Howard Taft a century later.  There is very little adaptation of the courts to modern times while the litigants are gaming the system with modern techniques.  

Mr. Roberts is rightfully upset that President Trump accused his judges of acting in a partisan manner.  Trump’s statements are true though and everyone knows they are; thus you dishonor yourself by defending a system that no longer exists, if it ever did.   There must be changes to defuse the partisanship you so deeply abhor Mr. Chief Justice, and you must be the one to lead fixing it.