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An 'independent judiciary' reality check

By Mark Alexander
web posted December 3, 2018

Let's set the record straight...

You may have heard that President Donald Trump is adamant about defending our southern border. Most recently, that defense has been focused on the migrant mobs attempting to breach our border between Tijuana and San Diego.

In a setback to Trump's efforts, one of Barack Obama's appointees on the Ninth Circuit Court of Appeals, Judge Jon Tigar, blocked Trump's order requiring that illegal alien asylum applications, the free ticket to America, be processed at legal points of entry. (There's a reason that circuit is also known as the Ninth Circus and the Nutty Ninth.)

Trump responded to the ruling, "You go the 9th Circuit and it's a disgrace. And I'm going to put in a major complaint because you cannot win — if you're us — a case in the 9th Circuit and I think it's a disgrace. This was an Obama judge."

On that note, Supreme Court Chief Justice John Roberts, in an unprecedented rebuke of a U.S. president, chastised Trump for stating the obvious: that an Obama-appointed federal judge "was an Obama judge."

Roberts declared, "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 right to those appearing before them. That independent judiciary is something we should all be thankful for."

It would have been proper for Roberts to say nothing about Trump's remark, but, ostensibly endeavoring to protect the integrity of the courts, he apparently felt compelled. Obviously, Justice Roberts knows full well how highly politicized the federal courts are — and his assertion that we now have an "independent judiciary" defies reality. The objective of impartial "blind justice" is certainly what our Founders prescribed for the judicial branch, but they knew that attaining equal justice under the law was a high bar.

The most recent skewering of then-SCOTUS nominee and now-Justice Brett Kavanaugh is an airtight case in point. So one might conclude that Roberts was projecting what he believes should be the nonpartisan nature of the courts. But as he stated it, he's flat wrong.

Responding to Roberts, Trump said, "I have a lot of respect for [Roberts] but I think we have to use some common sense. This 9th Circuit, everybody knows it's totally out of control and what they're doing, what they're saying, the opinions are very unfair to law enforcement, very unfair to our military, and they're very unfair, most importantly, to the people of our country because I'm keeping them safe."

Trump added: "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. It would be great if the 9th Circuit was indeed an 'independent judiciary,' but if it is[,] why there are so many opposing view cases filed there, and why are a vast number of those cases overturned[?] Please study the numbers, they are shocking. We need protection and security — these rulings are making our country unsafe! Very dangerous and unwise! Judges must not Legislate Security and Safety at the Border."

Rep. Trey Gowdy (R-SC), a former federal prosecutor and a strong candidate for a Circuit Court nomination once he retires from the House, declared, "I wish Chief Justice Roberts were right. I wish there were not a politicization of the judiciary."

Gowdy, chairman of the House Oversight Committee, added, "Every print article that you will go find ... refers to judges based on the president that put him or her in office. And you see terms like conservative and ultra conservative and liberal and moderate, which are political terms. ... So I wish Chief Justice Roberts were right. I wish that we did not refer to judges based on which president put them in office as if that is somehow going to inextricably lead us to the conclusion."

The fact is, federal judges have proven to be partisan for generations, and there is most assuredly a very distinct division and partiality on the federal bench.

Judges nominated and appointed by Republican presidents are partial toward Rule of Law and the Liberty enshrined in our Republic's Constitution. In the overwhelming majority of cases, they honor their oaths "to support and defend" our Constitution.

Conversely, judges nominated and appointed by Democrat presidents are clearly partial toward the so-called "living constitution" embraced by those who reject Rule of Law in deference to the rule of men, the irrevocable terminus of which is tyranny.

Of the latter, Thomas Jefferson warned they would "make the Judiciary a despotic branch." As the venerable former Sen. Sam Ervin (D-NC) once put it, these are judges who "interpret the Constitution to mean what it would have said if [they], instead of the Founding Fathers, had written it." Jefferson warned that such interpretation would render our Constitution "a mere thing of wax ... which [judges] may twist and shape into any form they please."

As James Madison cautioned, "There are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations."

As for partiality on the Supreme Court, over the last 18 months, according to The Daily Wire, "The four left-leaning judges on the Supreme Court are far more consistent about voting together as a bloc than the conservatives on the court; Elena Kagan votes with Stephen Breyer, Sonia Sotomayor and Ruth Bader Ginsburg an average of 89% of the time; Breyer votes with his cohorts an average of 91% of the time; Ginsburg also votes with her pals an average of 91% of the time, and Sotomayor joins them 90.3% of the time."

The assessment notes further, "By contrast, among the four right-leaning judges, Neil Gorsuch, Samuel Alito, Clarence Thomas, and John Roberts, Gorsuch sided with them an average of 82.7% of the time; Thomas 86.3% of the time; Alito 85.7% of the time, and Roberts 80.7% of the time."

As Cal Thomas concludes, "If all judges thought the same, as Roberts seems to suggest, why are there so many 5-4 rulings by the high court?"

And regarding significant immigration decisions by the lower courts since Donald Trump took office, according to a Washington Times review, "53 of the 54 Democrat appointed judges who issued or signed onto opinions in immigration cases ruled against the Trump administration's get-tough approach." The Times study noted further, "By contrast, among GOP-appointees to the federal bench, 15 judges have backed the administration in immigration cases and 13 have not."

As I have noted, judicial opinions are not about "Right" versus "Left"; they're about Liberty versus tyranny. Thus, in 2016, when I voted for Donald Trump instead of his leftist opponent, Hillary Clinton, I voted for the Supreme Court. And indeed, President Trump has consistently nominated constructionist judges to both the upper and lower courts.

And finally, what debate about the Supreme Court would be complete without Senate Minority Leader Chuck Schumer (D-NY) offering one of his mind-numbing observations. In an opinion that sounded far more satirical than senatorial, Schumer offered an affirmation of Roberts's assessment of judicial independence, while in the same breath accusing Roberts of partisanship in his decisions: "I don't agree very often with Chief Justice Roberts, especially his partisan decisions which seem highly political. ... But I am thankful today that he ... stood up to President Trump for an independent judiciary."

Yes, you heard that correctly: Schumer sided with Trump about the Court's partisan nature, then laughably implied that he supports "an independent judiciary."

But no sooner had he sucked up to the chief justice than he was back to his old obfuscatory games. This week on the Senate floor, Schumer, singing the Demos' midterm "rigged election" theme song, declared, "Justice Roberts will go down in history as one of those who worked to take away voting rights when he authored the Shelby decision and stated that he didn't believe that ... more or less, he stated that he didn't believe that discrimination existed any longer, so we wouldn't need Section 5 of the Voting Rights Act."

Of course, Roberts never wrote that. In fact, quite the contrary. In that decision, Roberts noted, "At the same time, voting discrimination still exists; no one doubts that."

Never let it be said that Schumer allowed inconvenient facts to get in the way of a partisan cheap shot. ESR

Mark Alexander is the executive editor of the Patriot Post.

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