At least Trump is candid about judicial politics

President Trump is usually insufferable but he’s not always wrong, and he is spectacularly right about the increasing ideological partisanship of the federal judiciary. Of course there are “Obama judges,” “Bush judges,” and “Clinton judges,” and so far Trump has been most effective in nominating and persuading the Republican-controlled Senate to appoint “Trump judges.”

For judicial nominees have political ideologies just as regular politicians do, and these days restraint and respect for precedent have less standing in both liberalism and conservatism. These days constitutional law is mainly a belief that the Constitution requires whatever you support and prohibits whatever you oppose.

The 9th Circuit of the federal court system, the circuit with jurisdiction for California and 10 other Western states and territories, which has drawn the president’s fire for issuing so many injunctions against his policies, is, as the president says, the circuit whose judges are most frequently overruled by the U.S. Supreme Court. This doesn’t mean that the 9th Circuit is always wrong and the Supreme Court is always right. It means only that the 9th Circuit, whose judges come disproportionately from California, an extremely liberal state, is far more liberal than the Supreme Court, whose judges have been chosen under much more national and less liberal influence.

Chief Justice John Roberts seems to have felt that the integrity of the federal courts required him to defend their judges against the president’s charge of political motivation. But it was ridiculous for Roberts to pretend that the judges don’t have their own politics and act from it on the bench. Roberts’ pretense is refuted by two recent spectacles: the U.S. Senate’s crude deliberation on Trump’s nomination of Judge Brett Kavanaugh to the Supreme Court and the Senate’s refusal even to consider President Obama’s Supreme Court nomination of Judge Merrick Garland. Everyone knew throughout those spectacles that there were indeed huge political differences between “Trump judges” and “Obama judges.”

This year Connecticut was powerfully reminded that its own judges sometimes are highly ideological politically. The state Senate rejected Governor Malloy’s nomination of Associate Justice Andrew McDonald, formerly a close aide to the governor and a state senator, to be chief justice of the state Supreme Court. For McDonald had been part of a majority on the court that claimed to have the power to erase capital punishment from the state Constitution.

That is, increasingly the appellate courts on both the federal and state levels are becoming unelected super-legislatures, eager to constitutionalize major political disputes and thus to resolve them permanently in favor of the politics of the judges. Courts are no longer mere umpires in government and politics; now they often are settling the score too.

Of course like many other politicians Trump wants the score settled his way; that’s why he has attacked the 9th Circuit and not other circuits. The president himself is now politicizing the courts in a different direction. But at least Trump is being candid about it while Chief Justice Roberts has offered only blather to counter it.

If the courts are to be depoliticized and the country’s liberty preserved, the people themselves, from whom the political parties draw their ideologies, will have to become less partisan. They will have to heed a great judge of the last century, Learned Hand, who cautioned: “The spirit of liberty is the spirit that is not too sure that it is right.”