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Chief Justice Roberts Is Wrong. We Do Have Obama Judges and Trump Judges.

November 26, 2018 - 7:00am

For someone trying to demonstrate that the judiciary is not political, getting into a political fight with the president sure is a funny way to do it.

After President Trump called a judge who ruled against him an "Obama judge," Chief Justice John Roberts issued an extraordinary public rebuke of the president, declaring in statement "We do not have Obama judges or Trump judges, Bush judges or Clinton judges." Roberts was not only wrong to speak out, but also his claim that there are no Obama judges or Trump judges was wrong.

If we do not have Obama judges or Trump judges, then why did Senate Republicans block President Barack Obama's nomination of Merrick Garland to replace the late Justice Antonin Scalia in the final year of Obama's term? And why did Democrats filibuster Trump's nominee, Neil Gorsuch, to fill Scalia's seat?

Even Roberts's fellow justices know there is a difference. If there were no Obama judges or Trump judges, then why did Anthony Kennedy wait for Trump's election to announce his retirement? And why doesn't Justice Ruth Bader Ginsburg just retire now and let Trump nominate her replacement? Because they both want a president who would appoint a successor who shares their judicial philosophy. (And, lo and behold, Trump appointed a former Kennedy clerk, Brett Kavanaugh, to succeed him).

The American people know that Roberts is wrong. In the 2016 election, exit polls showed that 70 percent of voters said Supreme Court appointments were either the most important or an important factor in deciding their vote. And polls show that Republicans expanded their Senate majority in 2018 in large part because conservative voters were angered over the left's brutal campaign of character assassination against Kavanaugh.

Roberts is correct that we should not have "Trump judges" or "Obama judges." It would be better for the country if every judge, regardless of which president nominated him or her, strictly interpreted our laws and the Constitution. But the reality is that not all do. While conservative presidents tend to nominate judges who exercise a philosophy of judicial restraint -- follow our laws as written -- liberal presidents tend to nominate judicial activists who legislate from the bench and shape the law to reach their preferred outcomes. The left believes in a "living Constitution," which can be interpreted to mean whatever they want it to mean without being formally amended.

Democratic presidents have been much more successful than Republicans in nominating judges who hew to their judicial philosophy. Over the past three decades, nearly half of all Republican Supreme Court nominees have either become "swing votes" (Sandra Day O'Connor, Kennedy) or defected to the court's liberal bloc entirely (David Souter). Even Roberts has joined the court's liberal bloc at key times, abandoning his judicial philosophy that judges should not legislate from the bench to provide the swing vote to uphold Obamacare. By contrast, not one liberal justice during the past three decades has defected to the conservative bloc or turned into a regular swing vote.

What is true of the Supreme Court applies even more to the appellate courts. Trump is right, the U.S. Court of Appeals for the 9th Circuit is a disgrace. This is the court that ruled that the phrase "under God" in the Pledge of Allegiance was unconstitutional, that the Second Amendment doesn't recognize an individual right to bear concealed arms and that bans on assisted suicide are unconstitutional.

This is why it is so important that Trump has nominated, and the Senate has confirmed, a record number of district and circuit court judges -- and why liberals are aghast at the pace of Trump's judicial confirmations. As former Hillary Clinton adviser Ronald Klain complained, "Trump's judicial nominees will be deciding the scope of our civil liberties and the shape of civil rights laws in the year 2050 -- and beyond." Everyone, left and right, knows that Roberts is wrong.

We do have an independent judiciary. Judges are not beholden to any president, including the one who appoints them. The judiciary plays a key role in our system of checks and balances. "Trump judges" should rule against Trump when he is wrong. That is why it is so important for the chief justice stay above politics. Roberts is right that our "independent judiciary is something we should all be thankful for." Rolling around in the rhetorical mud with Trump is not just bad form; it also undermines the very judicial independence Roberts is seeking to uphold.

Follow Marc A. Thiessen on Twitter, @marcthiessen.

(c) 2018, The Washington Post Writers Group



And we got w-a-y the h*ll more rightwingnut columnists than we need! And, those abject partisan columnists do little more than call the kettle black while peddling the party's puerile propaganda. Yuck.

SSN has started censoring the comments. How very Trumpian of you...too funny.

Happened to me. SSN definitely deletes opposition comments it doesn't totally approve of.

What did they censor? Let me know via FB message. I 'd like to know. thanks.

There are just as many radical, right leaning judges with crazy interpretations as the left. It is a shame that we no longer govern, nor interpret the laws from the middle any more. Hopefully the fastest growing political party, Independents, will get organized soon and start nominating their own candidates and therefore judges. What a wonderful place that would be...

No question that NPAs are increasing. Right now, Florida's voter registrations are 35% Democratic, 33% Republican, 28% NPA (Independents) and 4% Other. The Independents are also growing at the national level.

It never was "from the middle." FDR thought he had packed the SCOTUS. Surprise!

Who mentioned FDR? No one but you... It sounded good though...

What did we expect! As long as anyone has a political leaning, in the judiciary, there's going to be leanings in the judiciary. If we're ever to expect a totally neutral Supreme Court, then justices MUST renounce any, and all politics, the moment they become judges. Starting with traffic court. They must pledge to follow the rule of law, as its meaning is defined in the Constitution. With absolutely NO influence from out politics. And we all know, that will never happen.

Thiessen is extraordinarily qualified to make this "judgement". Sure.

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