Shame, The Last Refuge of Scoundrels

Many, though not all, of Trump’s judicial appointments fell below the level of quality, experience, temperament and impartiality that any reasonable person would expect of a federal judge. Many, though not all, saw their appointment as a mission to achieve ends that were radical, the undoing of the past century of jurisprudence that the right wing despised, stare decisis and judicial humility be damned.

Some were decidedly unqualified, bomb throwers in robes relishing the opportunity to wreak havoc on an institution that survives solely on its institutional legitimacy, the publics’ acceptance of its rulings, whether the outcomes were perceived as right or wrong, as coming from an honest effort to apply the law with integrity, without fear or favor. This didn’t start with Trump, and certain ploys like the refusal to give Supreme Court nominee Merrick Garland a hearing, lit a fuse that was almost certain to eventually explode.

Now that Biden is president, the Democrats are having their opportunity for payback.

But those times are gone. Prominent scholars openly speak out against judicial supremacy. And that academic theme carries over to the political realm. Indeed, Senator Wyden called on President Biden to “ignore” a district court’s ruling. Not even Orval Faubus was so audacious. (My article on Cooper v. Aaron is more timely than ever.)

At least with the current administration, there is no realistic chance the President will “ignore” a ruling of a federal court. Indeed, Biden couldn’t even stick to the script, and criticize the Supreme Court justices at the State of the Union. But sooner or later, the academic and political stars will align, and a President will openly flout a federal court judgment. Who will send in the 101st Airborne?

Biden is nominating judges at a pace exceeding Trump and Obama before him, which some might think would be more than sufficient to even the odds, even if the obvious outcome is that too many now sit on benches dedicated to imposing partisan outcomes, law and reason be damned, because what’s the point of a judicial branch if not to achieve what can’t be done legitimately in the investigative branch, Congress?

But the fact that Trump judges still exist, still wear robes, still sit on benches, is insufferable. What if a case is decided by an evil judge instead of a good judge? What if states judge-shop in districts where they  know what judge they’ll get, and therefore what outcome will be imposed, and it is not the “right” outcome?

Perry Bacon Jr. said the quiet part out loud in his Washington Post column, titled There is only one way to rein in Republican judges: Shaming them.

So at least in the short term, there is only one real option to rein in America’s overly conservative judiciary: shame.

Democratic politicians, left-leaning activist groups, newspaper editorial boards and other influential people and institutions need to start relentlessly blasting Republican-appointed judges. A sustained campaign of condemnation isn’t going to push these judges to write liberal opinions, but it could chasten them toward more moderate ones.

Putting aside the question of whether shaming the other tribe’s judges “could chasten them toward more moderate” rulings or drive them deeper into their hole, Bacon’s call to arms reflects the dominant view of nihilists, burn it all down. Rather than be good, or at least better than the other tribe, it reflects the position that the other tribe lies, cheats and steals its way to power and “we, the good guys,” always lose to them because we try to play fair. The only way to stop losing is to stop playing fair. The way to stop losing is to play as dirty as the other tribe.

Still, Bacon should be commended for his candor about Kavanaugh. Bacon also has the candor to admit he agrees with Trump!

In their thinking about the judiciary, Democrats should be more like Trump. While in office, Trump criticized a ruling he didn’t like by casting the judge who wrote it as an “Obama judge.” Roberts then issued a sanctimonious statement, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.”

But at least right now, Trump is right. Roberts and his colleagues are acting like Republicans, not judges — and Democrats should say that loudly and often.

Remember Trump attacking a judge for his ancestry? Remember Trump calling Judge James Robart a “so-called judge”? To people capable of feeling shame, this was disgraceful. For Trump, this was just his normal modus operandi, slurring anyone who fails to do his bidding. What a shame that even “his” Supreme Court justices weren’t willing to bend to his overwhelmingly orange will. Is the right move by the “good” tribe to be just as bad as the “evil” tribe?

There are a ton of people and institutions looking to rein in Republican-appointed judges. But many proposed reforms, while useful, are too small-bore: a code of ethics that Supreme Court justices must follow; more appointments of progressives to lower-court judgeshipslimitations on the Supreme Court’s use of its so-called shadow docket. More ambitious ideas have no chance of being adopted right now: term limits for Supreme Court justices; “court-packing” that increases the number of left-leaning justices; limitations on federal judges’ ability to invalidate legislation.

With little ability to formally limit the power of conservative judges, there are only informal means left.

What fails to be considered is that if the “good” guy burn it all down, but for good guy reasons, and the bad guys burn it all down, but for bad guy reasons, it still ends with everything being burned down. If the integrity of the judiciary is deliberately undermined, then the least dangerous branch will be reduced to the same irrelevance as its sister branches.

Do progressives not grasp that when they’ve burned the judiciary branch down, it won’t be there for them anymore than it’s there for conservatives? And without a functioning judicial branch, there will be no check on the tyranny of the executive when the other tribe takes back the White House, as it eventually will. Any maybe, just maybe, all their pet outcomes aren’t as legally sound as they would like, even if they are the policies they desperately want but can’t accomplish through legitimate congressional action.

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