Federal judiciary praised for independence amid legal challenges

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We leave for another day our Congress, where a few heroes can be found, and our president, who is beloved by 30% of the country, and the justices of the Supreme Court, who wear a different robe and march to the beat of a different drummer. We write today to sing the praises of our independent judiciary, whoever they may have been nominated by.

They have risen to the challenge of the last year and a half from the beginning. They have asserted their independence more and more, and some appointees of the current president have voted to restrain the initiatives of the Trump administration, showing more independence than their congressional colleagues.

Our federal judges have followed the law and the facts and honestly and fearlessly applied the Constitution and applicable law where the administration had crossed the line. Of course, like the trial lawyer who claims he never lost a case, the fearless trial judges who stand alone do sometimes get reversed by appellate courts. These are tough and often novel issues because the president pushes the envelope and has his own view of the relative power of the three branches.

Some might say that the president and the Department of Justice have lost their “presumption of regularity” to their joint detriment in an arena where the government used to enjoy a home-court advantage. Many district court judges have called out the DOJ advocates appearing before them for a lack of candor or integrity. Perhaps that should not matter, but it does.

The retribution generated against federal judges takes the form of calls and filings for impeachment. The president has an enormous megaphone that reaches 30% or more of America and when he is unhappy with a judicial decision, he often calls out the offending judges. And the pizza deliveries to the judge’s home send a chilling message – we know where you are. Security has improved thanks to the efforts of a female federal judge whose son was killed and husband shot five times by a disappointed litigant (not a Trump partisan).

The volume of significant judicial rulings against the administration in the last 30 days is clipping along at one a day:

• Kenedy Center;
• Presidential Records Act;
• Diego Garcia dismissal;
• Two slush fund /audit immunity cases;
• (The White House) Ballroom;
• Tarrifs II;
• Tarrif refunds;
• Pentagon Press case;
• Senator Kelly etc retribution;
• A dozen far-reaching immigration decisions affecting millions of people, in addition to the continuation of the 485 habeas corpus cases where the due process rights of immigrants were held too have been violated;
• Denial of DOJ voting records demands;
• Undoing the shuttering of the U.S. Agency for International Development and the Department of Education;
• Blocking foreign aid and research money penalties;
• Maryland judge ordered Venezuelans returned from El Salvador prison;
• District Court order enjoining sweeping election executive order;
• Blocking aid reduction to sanctuaries;
• Blocked executive order cancelling collective bargaining in 37 agencies;
• Blocked DOE letter barring all race-based programming and activities;
• Blocked order barring transgender individuals from serving in the military;
• Blocked two national status protections;
• A 135-page opinion barring asylum apps and green cards;
• Various major ICE detention centers have been blocked;
• Last week’s decision blocking the government’s termination/reduction of SNAP benefits in 20 states.

Our federal judges are hard at work and deserve our respect. Even when they are reversed.

Editorial Advisory Board Members Gary E. Bair, Arthur F. Fergenson, George Liebmann and Debra G. Schubert did not participate in this opinion.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

Gary E. Bair

Jill P. Carter

Arthur F. Fergenson

Nancy Forster

Susan Francis

Julie C. Janofsky

Ericka N. King

George Liebmann

George Nilson

Steven I. Platt

Angela W. Russell

Debra G. Schubert

Jeff Sovern

H. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.