Like a basketball player who mistakenly shoots into his own basket and scores points for the opposing team, Senate Democratic Leader Chuck Schumer of New York has inadvertently backed President Trump’s accurate contention that there are liberal judges appointed by Democrats and conservative judges appointed by Republicans who rule differently on cases.
After President Trump criticized U.S. District Judge Jon S. Tigar of San Francisco on Tuesday for issuing an order to stop Trump’s new emergency restrictions on asylum claims by immigrants from taking effect – calling Tigar “an Obama judge” – Chief Justice of the United States John Roberts issued a rare public statement rebuking the president.
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said Wednesday. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
Schumer piled on, criticizing President Trump in a Friday tweet: “I don’t agree very often with Chief Justice Roberts, especially his partisan decisions which seem highly political …. But I am thankful today that he – almost alone among Republicans – stood up to President Trump and for an independent judiciary.”
OK, stop and think about that tweet. If Schumer calls Roberts a Republican and believes the chief justice issues “partisan decisions which seem highly political” he is corroborating President Trump. The New York Democratic senator sank one for the president.
President Trump was stating a fact when he noted that district and appellate court judges from the 9th U.S. Circuit – which exercises jurisdiction over nine Western states and two U.S. island territories – tend to support liberal and Democratic positons in their rulings.
Roberts was right to say an independent judiciary is essential and an ideal that judges should strive for. But we live in the real world, not an ideal world.
In the real world, judges are not computers, all coming to identical conclusions on cases. Judges are individuals who come to the bench with different life experiences, different judicial philosophies, and – yes – different political views. That’s why they don’t always reach the same conclusions on the same cases.
President Trump’s observation about the 9th Circuit undercuts respect for rulings from that circuit, but the truth hurts. As the old saying goes, “facts are stubborn things.”
Here, the facts are with President Trump, if you look at the numbers. The 9th U.S. Circuit Court of Appeals – where I served as a law clerk many years ago – has swung incontrovertibly to the left over the past 30 years.
The president correctly stated that lawyers opposing his policies forum shop to bring their cases before federal judges appointed by Democrats, because they know such judges are more likely to rule in their favor. An increasing number of these judges seem enamored of the media attention their anti-Trump rulings garner.
Media adulation encourages “judicial dicta” – court rulings that go beyond facts presented in a case and the application of law to those facts. District judges in the 9th Circuit are issuing imperious rulings, particularly on immigration cases. In some cases, they have claimed their rulings apply to every federal court in the nation. But that is not how the law works.
Not surprisingly, the U.S. Supreme Court has consistently overturned hard-left decisions coming out of the 9th U.S. Circuit Court of Appeals.
The nation’s highest court accepts cases for review when four members believe circumstances warrant. Typically, a case must be of significance, involve conflicting rulings by appellate courts, or deal with a major contested question. While only a fraction of appeals to the Supreme Court receive review, the American Bar Association reports that 80 percent of the 9th Circuit rulings reviewed by the Supreme Court are overturned.
Only one circuit has a higher percentage of overturned cases – the U.S. Circuit Court of Appeals for the District of Columbia. They are overruled 83 percent of the time. Notably, that court has 17 Democratic appointees and nine Republican appointees at the district level, and seven Democratic appointees and three Republican appointees active at the appellate level. Altogether, there are 24 Democratic appointees and only 12 Republican appointees.
Similarly, in the 9th U.S. Circuit, Democratic appointees outnumber Republican appointees 116 to 33 at the district court level. At the appellate level, Democratic appointees number 16, Republicans just seven.
Moreover, of the 132 active Democratic-appointed federal judges within the 9th Circuit, 66 – including Judge Tigar, who was criticized by President Trump – were appointed by President Obama. In other words, 57 percent of Democratic appointees to the 9th Circuit are “Obama judges.” And yes, these are the ones who have made headlines ruling against this President Trump.
In effect, what these numbers suggest is exactly what President Trump asserts – that Democratic-appointed judges in the 9th Circuit are out of sync with U.S. Supreme Court precedent, consistently leaning too far left, and with a majority Democrat appointees, most of whom are Obama appointees.
Run a counterproof. What is the least-reversed circuit – the one most in sync with the Supreme Court? The 7th U.S. Circuit Court of Appeals, which was reversed only 55 percent of the time. What is that circuit’s composition? Republican appointees outnumber Democrats nine to two.
Bottom line: An independent judiciary, in the best tradition of Chief Justice John Marshall, is vitally important. Judges should decide cases in a nonpartisan way. They should review facts impartially, then apply law without personal prejudice or political preference, resolve disputes on narrow legal grounds, construe the Constitution strictly, defer to other branches as constitutionally appropriate, and avoid legislating from the bench.
To this extent, Justice Roberts is correct – and in sync with what President Trump and traditional constitutionalists say: America needs a credible, nonpolitical, and independent judiciary. That is and should be a shared goal.
However, absent a conscious effort to avoid politics – and in the case of Democratic-appointees, to avoid legislating from the bench – judges who first rose from politics to their judicial appointments seem to drift backward toward their political leanings.
President Thomas Jefferson worried about this exact problem. In 1801, he foresaw judicial overreach and warned – even then – that leaders of the political opposition “have retreated into the judiciary as a stronghold, the tenure of which renders it difficult to dislodge them.”
In 1807 Jefferson wrote to a friend: “The original error … (was) establishing a judiciary independent of the nation and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will.”
So while we all wish for an independent judiciary – judges who apply the law strictly and on a nonpartisan basis – the 9th U.S. Circuit stands out like a sore thumb. The judges have progressively drifted from the ideal. Accordingly, the facts are with President Trump on this one.