The Resistance Starts to Infect Our Courts

That is the headline on a must-read New York Sun editorial on a deeply troubling trend: the politicization of our court system.

The editorial notes that “some judges around the country seem sympathetic to the so-called resistance to the Trump presidency.”  

When President Trump succeeded in having ten new judges appointed to the 9th Circuit, previously the most liberal court in the U.S., one of the longstanding liberal judges angrily charged that Trump had “flipped” the court.

Presidents don’t “flip” courts; they appoint judges who reflect their legal philosophy. A liberal president would have appointed liberal judges. That’s how it works.

The Department of Justice’s recommendation that the first recommended sentence for longtime political operative Roger Stone (9 years) was out of proportion sent the Federal Judges Association into a frenzy.

One distinguished federal judge cautioned his peers about their politicizing of the courts. It’s time to crawl off the political precipice, he told them. 

As the Sun recounts:

[A]fter the Justice Department moved to reduce a sentencing recommendation for Roger Stone, USAToday reported that the Federal Judges Association was calling an emergency meeting. Its president, District Judge Cynthia Rufe, said the idea was to address concerns about how Justice officials and the President were intervening in sensitive cases.

That shocked a number of federal judges, and Judge Rufe later tried to play it all down. Not, though, before one of the towering figures on the Second Circuit, Jose Cabranes, fired off to Judge Rufe a now widely circulated email. It expressed concern that the emergency meeting would “purport to speak for the federal judiciary on a pending political question.”

“I urge you to come off this precipice, and to withdraw from active politics in the name of the federal judges of this country,” Judge Cabranes, a longtime member of the FJA, wrote in his brief cable. “If you do not do so, you risk confusing the public about the role of the courts in our constitutional order and thereby deepening the crisis in confidence in our institutions.”

Judge Cabranes spoke before Justice Sonia Sotomayor on Tuesday issued a scathing attack on the objectivity of her colleagues on the Supreme Court who were nominated by Republican presidents. In a nutshell, she accused them of toadying to the Trump administration. Odd accusation as the Trump appointed Justices don’t vote in lockstep and often disagree with each other.

Justice Sotomayor did this in a dissent on a case involving enforcement of the “public charge” rule in Illinois. The public charge rule says that immigrants who likely will become public charges can be a visa. Before the Trump administration, receiving Medicaid or non-cash housing assistance didn’t court. The Trump administration successfully argued that they should.

Surely, it is possible to disagree with Justice Sotomayor on this case for reasons other than toadying to the administration?