OPINION: The Difference Between An Obama Judge And A Trump Judge

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Chief Justice John Roberts’ rebuke of President Trump for criticizing a federal judge who issued a temporary restraining order blocking the administration from barring migrants who enter the U.S. illegally from seeking asylum isn’t the first time that Roberts has tried to suggest that judges aren’t political.

The most famous prior occasion was when Roberts told the Senate Judiciary Committee during his 2005 confirmation hearing, “Judges are like umpires … whose job is to call balls and strikes and not to pitch or bat.” He also said that “umpires don’t make the rules; they apply them.”

No serious student of the modern judiciary took Roberts’ 2005 comments seriously.

They shouldn’t take his most recent attempt at myth-making seriously, either. After all, if there wasn’t a difference between “Obama judges” and federal judges appointed by Republican presidents, President Trump’s opponents wouldn’t be moving heaven and earth to try to stop him from appointing conservatives to the federal courts. Surely, the chief justice can’t already have forgotten the trials to which Brett Kavanaugh was subjected.

Of course, Roberts was appointed by a Republican president, but that president — George W. Bush — like Roberts himself, was an establishment conservative, and establishment conservatives resent President Trump’s 2016 election victory almost as much as Democrats do. Perhaps that helps explain the chief justice’s seemingly unprecedented attack on the president.

Two additional points are also worth noting. First, President Trump isn’t the only president, or future president, who has criticized a federal judge for making a political decision. Second, Chief Justice Roberts himself wrote one of the most political opinions in Supreme Court history.

The most significant example of a president or future president criticizing a ruling issued by a federal court is almost certainly Abraham Lincoln’s response to the 1857 decision in which the Supreme Court ruled that African Americans could not be citizens of the United States and could not sue in federal court, as Dred Scott, a Missouri slave, had done to gain his freedom after living briefly in Illinois and Wisconsin. Lincoln publicly condemned the decision, stating that blacks were entitled to the same freedom as whites. Lincoln was obviously correct in his criticism of the Court’s racist politics in the Dred Scott case and the nation became a better place because he criticized the court.

With respect to Roberts himself, in 2012 the chief justice joined with the four liberals on the Court to uphold Obamacare, and he invented out of whole cloth a new definition of taxation that contravened long-standing precedent to do so. As both the law’s opponents and the court’s dissenters pointed out, the so-called individual mandate that required most Americans to have a basic level of health insurance coverage or pay a fine was labeled a “penalty,” not a tax, in the statute; it was designed to encourage people to buy health insurance, not to raise revenue; and President Obama himself had rejected claims that the law was a tax when it was being considered by Congress.

But the chief justice did what he did for a political reason: he had made the calculation that he did not want a conservative Supreme Court being seen as having overturned, presumably on political grounds, the signature legislation of the Obama administration. (Congress reduced the individual mandate penalty to $0 effective in 2019 as part of tax reform legislation passed last December.)

In short, all President Trump did was state the obvious: it matters who the judges are. Indeed, the first question that every litigator asks is, who is the judge? President Trump isn’t a lawyer, but he was elected president of the United States in large part because he made it clear to the American people that he knows that it matters who gets to nominate the judges. “Obama judges” are different from “Trump judges,” and judges nominated by Hillary Clinton would have been different from Trump judges too.

Scott Douglas Gerber is a visiting professor of political theory at Brown University and a law professor at Ohio Northern University. His nine books include “A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787” (Oxford University Press).

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.