By EMERSON LYNN
When Supreme Court Justice John Roberts scolded the president for his partisan characterization of 9th Circuit judges as Obama puppets, it was news because the president was being rebuked by one of his own. It was embraced by those alarmed with Mr. Trump’s efforts to paint the judiciary with a partisan brush.
Fast forward to perhaps as early as January, 2021. For argument’s sake, let’s assume Mr. Trump is defeated in his reelection bid and his opponent is about to take the nation’s reins for the next four years.
For grins, let’s assume it’s Bernie.
Does anyone expect that Mr. Sanders would not be critical of Circuit Court or Supreme Court decisions contrary to his own beliefs, and that he would characterize them as products of Mr. Trump? Does anyone think he would be any less “clear” on his rebukes?
Of course he would.
And his language would be just as clear, if not more so.
And perhaps with good reason. Mr. Trump has filled the circuit court judgeships at a faster pace than any of his recent predecessors. The nation’s circuit courts are also the second-highest courts in the nation and where most of the important cases are decided. The president’s appointments are also largely “originalists”, meaning they hue to the closest interpretation of the Constitution.
His conservative stamp on the courts is likely to last for decades.
It’s a given that Mr. Sanders would be as critical of Trump’s appointments as Trump has been of former President Barack Obama. There is no evidence that Mr. Sanders would be any kinder in his descriptive prose than Mr. Obama.
But the president’s partisan blast is also not something that’s unusual historically. The judiciary is one of our government’s three branches, and it’s always been a target of those we elect to office. How could it be otherwise, given the importance of what the courts do, and their impact?
It was Franklin Delano Roosevelt – historically one of the most popular of our presidents – who tried to pack the Supreme Court because it kept striking down his New Deal legislation. His public rebuke? “This brings forward the question of aged or infirm judges – a subject of delicacy and yet one that requires frank discussion.”
Then, there was Theodore Roosevelt who appointed Oliver Wendell Holmes to the Supreme Court thinking they would be of like minds on issues before the court. That didn’t happen. Following one of the justice’s opinions Mr. Roosevelt wrote: “I could carve out of a banana a judge with more backbone than that.”
That’s almost Trumpian. And from a president who is regarded as one of our best.
It was the role of Chief Justice Roberts to step forward and to remind the nation that the responsibility of judges is to be independent of political persuasion. History is littered with examples of justices who have countered expectations of those who appointed them, and it’s always the hope that justices find their own way and not follow the path of expectation set by those who appoint them.
But, as Thomas Jefferson pointed out, it’s also naive to believe judges are any less human than the rest of us, and that judges don’t have their biases and political aims of their own. They are subject to the same lures of power as those who appoint them. They have egos as well.
We’re stronger when we recognize the weaknesses of both.
At least it’s a discussion the president has brought out into the open where it’s easier to judge how both the president and the courts respond.
Emerson Lynn is co-publisher of the Sun and is publisher of the St. Albans Messenger, where this editorial first appeared.