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Roberts’ Rare Rebuke of Trump is Disingenuous

Both forum shopping and calling out the philosophical bent of a judge are as old as the country itself.
john roberts

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In a rare rebuke, Chief Justice John Roberts hotly disputed President Donald Trump’s claims that federal judges decide cases based on the presidents who appointed them.Trump was complaining that Jon S. Tigar, the United States District Judge for the Northern District of California had invalidated a Department of Homeland Security rule to end asylum claims by migrants who had illegally crossed the southern border because he was “an Obama judge.” Trump added:

“Everybody that wants to sue the United States, they file their case in the Ninth Circuit. And it means an automatic loss no matter what you do, no matter how good your case is.”   

The chief justice, on the other hand, insisted in a statement that federal judges are fungible—like baseball umpires. He maintained: “We do not have Obama judges or Trump judges, or 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.”

Both the president and chief justice are half-right and half-wrong. In most cases, federal judges are interchangeable because the clarity of the law leaves little or no room for interpretive discretion. The United States Supreme Court, for instance, is unanimous each term in approximately one-half of its decisions. A small fraction is decided by 5-4 votes.    

But these hard cases are commonly controversial and more important than others. The law is frequently indeterminate leaving much room for judges to smuggle in political of personal views.

That explains so-called “forum shopping,” i.e., the practice of all lawyers, whether government or private, to file suit in a federal forum featuring judges believed to be philosophically friendly to their claims. And a judge’s philosophy ordinarily aligns with the appointing president’s politics. Judicial appointments are thus a regular theme of presidential campaigns. Richard Nixon’s 1968 campaign, for example, promised to undo the marked liberal jurisprudence of Chief Justice Earl Warren.

Trump assailed the Ninth Circuit forum shopping by plaintiffs challenging several of his signature immigration initiatives because of its liberal bent. But the criticism is like the pot calling the kettle black. The government regularly does the same in steering national security criminal prosecutions to the United States District Court for the Eastern District of Virginia. It is home to the Pentagon, the CIA (in the Alexandria Division), and the world’s largest naval base (in the Norfolk Division). National security trials there have all the suspense of a marriage ceremony. Not guilty verdicts are as rare as unicorns. 

Finally, there is nothing inherently problematic in a president’s criticism of judges or the judicial branch. It has been around since President Thomas Jefferson regularly excoriated Chief Justice John Marshall. Life tenure makes it more rather than less important that federal judges be scrutinized or called to task for overreaching. As Associate Justice Robert Jackson taught about the Supreme Court in Brown v. Allen: “We are not final because we are infallible, but we are infallible only because we are final.” To the extent criticism of judges is informed, to that extent it is constructive and should be encouraged.

Bruce Fein was associate deputy attorney general and general counsel of the Federal Communications Commission under President Reagan and counsel to the Joint Congressional Committee on Covert Arms Sales to Iran. He is a partner in the law firm of Fein & DelValle PLLC.