Friday, November 23, 2018
President Trump versus Chief Justice Roberts: America Loses
President Trump Versus Chief Justice Roberts: America Loses President Trump is justifiably frustrated with the Ninth Circuit Court of Appeals and its district court judges. They are the leaders of the anti-Trump judicial resistance. Federal judges have lifetime appointments. Many therefore act like a captain of a ship, or even God. A large number of the Ninth Circuit appellate and district court judges are social activists, who believe in the Rule of Man rather than the Rule of Law. The Ninth Circuit has 16 appellate judges appointed by Democrats and 7 by Republicans with six vacancies. Five replacements have been nominated by the President, awaiting Senate confirmation President Trump responded to a reporter’s question yesterday about Judge Tigar’s nationwide injunction Tuesday against his new amnesty policy, which would allow amnesty only for immigrants who entered the country legally. He replied “Every case that gets filed in the Ninth Circuit, we get beaten. And then we end up having to go to the Supreme Court, like the travel ban, and we won.” He also said It’s a disgrace, and I am going to put in a major complaint because you cannot win – if you’re us – a case in the Ninth Circuit.” He added: “This was an Obama judge. And I’ll tell you what, it’s not going to happen like this anymore.” Chief Justice John Roberts responded through a statement: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal best to do equal rights to those appearing before them. An independent judiciary is something we should all be thankful for.” President Trump responded: “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country,” beginning a series of presidential tweets. “It would be great if the 9th Circuit was indeed an ‘independent judiciary,’ but if it is why are so many opposing view (on Border and Safety) cases filed there, and why are a vast number of those cases overturned. Please study the numbers, they are shocking,” the tweets said. He continued on Thanksgiving: “Justice Roberts can say what he wants, but the Ninth Circuit is a complete and total disaster. It is out of control, has a horrible reputation, is overturned more than any circuit in the country, 79%, is used to get an almost guaranteed result – judges must not legislate security.” He added “It’s a terrible thing when judges tell you how to protect your borders. It’s a disgrace.” Many of the federal judiciary would have been unsympathetic to the Trump Administration proposals. He made it worse by “taking out” one of them during the campaign. Judge Gonzalo Curiel, a second generation Mexican American from Indiana. His parents emigrated to America to seek a better life for themselves and their family. The Judge was hearing two Trump University fraud suits in San Diego. Donald Trump had won some rulings, but lost others. He said in May 2016 the judge was of Mexican heritage and a member of a Latino lawyer’s group and thus had a conflict of interest because of Trump’s “building a wall.” The case was later settled for $25 million. Ironically Judge Curiel ruled in February 2018 that the Department of Homeland Security could proceed with building the wall. I have to believe that some of the district court decisions are the judges expressing their displeasure in his behavior. Donald Trump complained about the Chief Justice before being elected President. He tweeted after the Chief Justice upheld ObamaCare: “Congratulations to John Roberts for making Americans hate the Supreme Court because of his BS.” The candidate referred to the Chief Justice during the campaign as “disgraceful” and disappointing for his Obamacare opinions. We know several realities about President Trump. First, he is a New York City streetfighter. He fights back. Second, he will tweet and otherwise express his feelings. He is transparent. Third, he is not diplomatic or euphemistic in his comments. He calls them as he sees them. Fourth, he says what many think, but will not say. He’s right about the Ninth Circuit. The are constantly creating new law to fit their social beliefs, often engaging in judicial legislation. Judge Stephen Reinhardt was liberal guru on the bench. His attitude was that the Supreme Court couldn’t reverse them all. His wife Ramona Ripston, was executive director of the ACLU of Southern California for four decades. His opinions had a high reversal rate before he Supreme Court. He felt loosely bound by precedence. He believed courts should be an instrument of social change. His name on an opinion was a red flag for the Supreme Court. Judge Reinhardt passed away on March 29, 2018. President Trump will not fill the vacancy with another progressive judge. Several of the President’s tweets are ill-advised and counterproductive. His comment about Senator McCain was one of his most objectionable and particularly costly. He said about the Senator during the campaign: “He’s not a war hero. He’s a war hero because he was captured. I like people that weren’t captured.” The ailing Senator flew back from Arizona to cast the deciding vote on repeal of ObamaCare. He campaigned against ObamaCare in his reelection campaign. He voted NO on the repeal, to the surprise of almost everyone. I can’t read his mind, but the vote seemed to have been a vindictive payback to President Trump. His NO vote contributed to the defeat of several Republicans two weeks ago because they had no answer to the preexisting-condition claim that they were opposed to coverage of pre-existing conditions. The Kavanaugh Hearings confirmed that the Supreme Court is a political body, not that there was ever much doubt. The Court, as a political body, is open to criticism. The Chief Justice denies the obvious in publicly defending the district judges. He knows what’s happening. The Chief Justice is not above reproach when using the Court as a political instrument. His two opinions upholding ObamaCare were politically motivated. His fellow justices knew he was against it, but then he suddenly pulled a rabbit out of the hat, calling it a tax rather than a penalty. The second time around, three years later in 2015, he ignored the plain language of the statute which provided “An individual could receive tax credits only if the individual enrolls in an insurance plan through ‘an Exchange established by the State.’” Chief Justice Roberts went through judicial conniptions to hold the individuals could receive the tax credits if they were enrolled in a state or federal exchange. Justice Roberts received withering criticism from the media and Democrats before issuing his 2012 ObamaCare decision. The charge was that a rejection of the Act would serve as an institutional failure for the Court. A ruling on unconstitutionality would harm the Republic and subvert the will of the people. The Chief Justice caved. He caved to political pressure, making the Court a political body. He was strangely quiet when President Obama in his 2012 State of the Union address, trashed the Supreme Court, misconstruing its Citizens United opinion, as six justices inter judicial robes sat in front of him. Justice Alito was seen muttering "Not sure, Not sure," but never a peep from the Chief Justice. He has shown signs of following the paths of Justices Stevens, O’Conner and Kennedy in succumbing to Potomac Fever. We can only hope that the President’s tweets do not push him further in that direction. What’s Chief Justice Roberts going to do next time on Obamacare since Congress has rescinded the individual mandate and the tax penalty?