Saturday, March 31, 2018

Trump's Desire to Weaponize the Supreme Court

One of the main bulwarks of democracy and the rule of law is an independent judiciary that, at least in theory, equally applies the law to all citizens.  In practice, of course, one's ability to hire top legal counsel can result in some receiving very different outcomes than others.  Still, the concept of the equal rule of law is key to a democracy and, in America, the court of last resort on federal and constitutional issues is the Supreme Court of the United States.  This fact makes that court a target of Trump's megalomania and desire to weaponize the court against those who oppose him and those he dislikes: non-whites, gays, non-Christians, - the list is a long one.  With several of the Court's justices in their 80's, Americans who care about democracy should be terrified of the prospect of a retirement which would allow Trump to appoint another bigoted ideology like Neil Gorsuch.   Pray that no justice retires before the end of January, 2019, and that the Democrats retake control of the U.S. Senate in the 2018 midterm elections.   A column in the Washington Post looks at Trump's sinister agenda.  Here are excerpts:
Think about that last sentence, which received way less attention, and condemnation, than it deserved: “We . . . must ALWAYS hold the Supreme Court,” as if it were the presidency or a house of Congress, a prize awarded to the electoral victors.
As always, Trump manages to combine ignorance and cunning. He is ignorant of — ignorant, really, to the point of allergic to — the importance of the judiciary as an independent institution and the operation of the rule of law. Yet he is also maliciously canny; this is a man who knows that nothing motivates his base more than the prospect of courts packed with conservative judges.
“When I got in, we had over 100 federal judges that weren’t appointed,” Trump observed the day after the Stevens tweet, somewhere in the middle of a speech on infrastructure. “It was like a big beautiful present to all of us. Why the hell did [President Barack Obama] leave that?” Um, because Republicans, led by Senate Majority Leader Mitch McConnell (R-Ky.), did their best to stall and block nominations?
For Trump, judges are just another set of crude political actors, on Team Trump or off it. When they rule against his political or financial interests, they are to be demeaned (“Mexican” judge, “so-called judge”) and bullied (“Just cannot believe a judge would put our country in such peril,” Trump tweeted after a ruling halting his travel ban. “If something happens blame him and court system.”)
But the Supreme Court, his tweet notwithstanding, is not “held” by Republicans — it is occupied by judges, who are nominated by Republican or Democratic presidents and confirmed by a Senate that has a Republican or Democratic majority. Unlikely that Trump was aware of this, but Stevens — who turned out to be a stalwart liberal — was nominated by a Republican president, Gerald Ford.
That is why Chief Justice John G. Roberts Jr.’s famous umpire analogy, depicting judges as neutral arbiters dispassionately using their Very Big Brains to reason through legal problems, was so frustrating, unsatisfying and, ultimately, misleading. “I believe that there are right answers,” Roberts said, “and judges, if they work hard enough, are likely to come up with them.”
But judging doesn’t work that way, certainly not at the Supreme Court level. The justices are not computers, they are humans, very smart ones, with very well-thought-through views about the Constitution and the law.
Trump is in good company with his cynical instrumentalism: McConnell’s brute-force refusal to consider Merrick Garland’s nomination to replace the late Justice Antonin Scalia stems from the same anything-goes conviction. 
And the future of the high court, and the judiciary generally, is not solely a Republican concern. My colleague Ronald Klainhas predicted a “battle of the ages” if Justice Anthony M. Kennedy retires this summer — one that Klain thinks will motivate Democrats even more than Republicans.
[T]he court functions best — it produces better results and stands a better chance of broad societal acceptance — when justices’ views are tested and contested, when they have to defend their interpretations and temper their positions to accommodate alternate ideologies.
A court composed entirely or overwhelmingly of justices appointed by presidents of a single party, whether Republican or Democratic, would not be a better court. It would be a far more flawed — and therefore more dangerous — branch.
Adding to my concern are two facts: (i) today's GOP put's party over country, and (ii) the American Bar Association - the country's largest association of attorneys - have rated many of Trump's federal court nominees as "unqualified."  Some have been so bad that their nominations were withdrawn.  Be very afraid if a justice retires before February 1, 2019.

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