Sunday, March 5, 2017


James Robart, a Bush nominated Federal Judge in the State of Washington, was pegged by President Trump as a “so-called” judge.

That demeaning Presidential Tweet inspired the Deans of Harvard and Yale Law Schools to depart from the comfort of academia and throw their weight into the street fighting over the actions and attitudes of the 45th President.

Specifically, both deans came down on the action of the President as being a threat to the ‘Rule of Law.’ And, of course, they amplified their opinions with scholarly discourse supporting the universally accepted principal that the rule of law is essential and sacrosanct in all civilized societies.

The difficulty is that the Deans overlook the fact that in all contested litigation there are both winners and losers. Both sides are represented by lawyers and their lawyers all argue that the law is on their side.

Thus there is the commonly accepted fact that most people who lose lawsuits believe that the rule of law has not been observed in their case.

The issue then comes down to this: if the law were on my side, why did I lose the case? If the rule of law required that I win, why did the Judge decide against me?

Street-smart people, cognizant of the vicissitudes of human nature, are quick to fill in the blanks. You lost your case because the Judge wanted the other side to win. Not decided they should win because of the law, but decided in their favor because he agreed with the outcome they were arguing for.

It should surprise no one that “outcome jurisprudence” has become a hallmark of the federal judiciary. Cases argued in the United States Supreme Court are commonly supported on both sides by extensive Amicus Curia briefs – Friends of the Court, if you will, who are not parties to the lawsuit, but who weigh in on one side of the other in support of the “outcome” they favor.

The process, indeed, is no longer a legal one in the traditional sense; it is a public debate about the desirability or danger of the outcome. When that becomes the controlling fact of a lawsuit, the judge who enters upon that kind of decision making has abandoned the rule of law, and indeed has abandoned his oath bound judicial duty.

It is not much of a stretch to call such a presiding officer a “so-called Judge.”

The legal issue at stake in the litigation over the Presidential order quarantining travelers from seven Middle Eastern nations is not the wisdom or fairness, or necessity of the order. The legal issue, pure and simple, is whether the President has the legal power, the authority, to issue the order.

The Constitution does not empower Judges to second guess the President.
If the Law, as declared by the Congress, gives the President the authority, to make such an order, then it is valid and there is no equitable argument sufficient to override the executive prerogative.

The Harvard and Yale Deans were not alone. American Bar Association president Linda Klein lambasted Trump's attack on Robart in a fiery speech delivered during the organization's midyear meeting in Miami. "There are no 'so-called' judges in America," Klein said. "There are simply judges, fair and impartial. And we must keep it that way."

While we have to credit Ms. Klein for defending the judiciary in the setting of a Bar Association meeting, it strains credibility to suggest that all judges are, at all times, and in all cases, completely fair and impartial.

I  served on the bench in Michigan, a State in which members of the judiciary are elected by the people. Our system is candidly based on the notion that the citizenry can distinguish between honest, conscientious judges who follow the law and so-called judges who decide cases with a wet finger held against the winds of popular sentiment.

Federal Judges don’t have to justify their impartiality to the voters on election day. They are appointed, not “for life” as so many people believe; they are appointed to serve “during their good behavior.”

For too many federal judges “good behavior” means making popular decisions. The outpouring of demonstrators at airports around the country to protest the President’s order was surely enough to chill Judge Robart’s wet finger.    

1 comment:

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