OPINION: Both Trump And Roberts Have A Point

REUTERS/Jonathan Ernst

Jim Huffman Dean Emeritus, Lewis & Clark Law School
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President Trump and Chief Justice John Roberts have a disagreement.  

The president labeled District Court Judge Jon Tigar an “Obama judge” after Tigar ruled that the president’s barring of asylum for immigrants who enter outside of legal checkpoints conflicts with the “expressed intent of Congress.”  

Roberts, in a rare public response, declared that “we do not have Obama judges or Trump judges, Bush judges or Clinton judges.”

As the head of the judicial branch of government, Roberts likely concluded that he had no choice but to respond when the head of the executive branch questions the independence of a judiciary whose legitimacy depends on its independence.

If we accept that judges rule on the basis of the politics of the president who appointed them, judicial review is just politics made worse by the fact that federal judges are not elected. The constitutional separation of powers is an essential constraint on the abuse of government power that works only if each branch defends its turf.  

Roberts took a public stand to defend what Alexander Hamilton in Federalist #78 called “the weakest of the three departments of power.”

The judicial branch is the weakest department of power, according to Hamilton, because it has “no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.”  It has, wrote Hamilton, “neither FORCE nor WILL, but merely judgment.”

Roberts might have chosen, as most chief justices have through American history, to let the record of judicial judgment speak for itself. But that record is not as persuasive as the chief justice’s statement implies.  His claim that federal judges do not represent the views of the presidents who appointed them is better understood as aspirational than as factual.

President Trump may have been wrong about Judge Tigar, but he is not wrong to suggest that judicial outcomes sometimes appear to depend on which president appointed the ruling judge.

Of course, the chief justice must deny that such political bias occurs at any level of the federal judiciary, but if that were so, how do we explain the vast investment of financial, political and reputational capital in both support and opposition to the nomination of Brett Kavanaugh to the Supreme Court? And how do we explain that President Trump’s election may well have turned on voters for whom the future composition of the courts was the decisive factor?

Here in the 9th Circuit — the prime target of Trump’s ire — the outcomes in controversial cases are all too predictable on the basis of panel composition. Court watchers invariably ask whether the judges on a particular panel were appointed by a republican or democratic president. In the national press, Supreme Court justices are routinely described as left and right reflecting the party of the appointing president.

Although the court renders frequent unanimous rulings and most of the court’s non-unanimous decisions are joined by justices from both perceived camps, how the justices vote on controversial issues like abortion, immigration, guns and voting rights almost always reflects the politics of the president who appointed them.

If a justice joins the other side, there is surprise and displeasure on the part of those who thought the justice shared their politics. Chief Justice Roberts experienced that displeasure after breaking with conservatives to uphold Obamacare.

There can be no doubt that Chief Justice Roberts believes that there should be no Obama, Trump, Bush or Clinton judges. And there should be no doubt that the rule of law requires that there be only nonpartisan judges.

But there can also be no doubt that on some questions partisanship is the only plausible explanation for many judicial holdings. So perhaps the chief justice’s unusual public rebuke of President Trump was directed as much at his fellow judges as at the president.

There is no excuse for the president’s reckless condemnations of particular judges, the 9th Circuit, or the judiciary in general. The chief justice was right to come to the defense of the federal courts. But Trump is not the only person to believe that some federal judges sometimes allow politics to influence their rulings.

Trump’s perception is widely shared, and that is a problem for federal judges that only they can solve.

James Huffman is dean emeritus at Lewis & Clark Law School and a visiting fellow at the Hoover Institution.

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