One of the dumbest things that Chief Justice John Roberts has done, and there have been a number of things that fall into this category, was to declare back in November of 2018 that President Trump was wrong in characterizing a judge, appointed by Barack Obama, who had overturned an administration policy as an “Obama judge.”
“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 be thankful for.”
This was lunacy, though The Bulwarkians slobbered over Roberts’s comment as though he’d revealed the real world to Trump rather than engaging in a shallow attempt to gaslight the nation. Of course there are Obama judges. If you need proof, you need look no further than this.
The speaker is Judge Carlton Reeve, he’s an Obama appointee to the federal district court for the Southern District of Mississippi. He’s accepting the Thomas Jefferson Foundation Medal at the University of Virginia Law School. The title of his speech is OrangeManBad…just joking, but it might as well have been.
When politicians attack courts as “dangerous,”83 “political,”84 and guilty of “egregious overreach,”85 you can hear the Klan’s lawyers, assailing officers of the court across the South. When leaders chastise people for merely “us[ing] the courts,”86 you can hear the Citizens Council, hammering up the names of black petitioners in Yazoo City. When the powerful accuse courts of “open[ing] up our country to potential terrorists,”87 you can hear the Southern Manifesto’s authors, smearing the judiciary for simply upholding the rights of black folk. When lawmakers say “we should get rid of judges,”88 you can hear segregationist Senators, writing bills to strip courts of their power. And when the Executive Branch calls our courts and their work “stupid,”89 “horrible,”90 “ridiculous,”91 “incompetent,”92 “a laughingstock,”93 and a “complete and total disgrace,”94 you can hear the slurs and threats of executives like George Wallace, echoing into the present.
This attack is heard loudest in the slander of Judge Curiel. But it will be felt through this Administration’s judicial nominations, especially those confirmed with the advice and consent of the Senate. Of the Article III judges confirmed under the current Administration, 90% have been white.100 Just one of those judges is black.101 Just two are Hispanic. It’s not just about racial diversity. Barely 25% of this Administration’s confirmed judges are women.102 None have been black or Latina.103 Achieving complete gender equality on the federal bench would require us to confirm only 23 women a year.104 How hard could that be? I suspect Deans Goluboff and Kendrick would say, “not very hard.
This Administration and a bare majority of the Senate, walking arm-and-arm, are not stumbling unaware towards a homogeneous judiciary. Think of the slurs against Judge Curiel. Think of the
nominations to the bench of those who call diversity “code for relaxed standards,” 113 who call transgender children part of “Satan’s plan,” 114 who defend the KKK in online message boards,115 who led voter suppression efforts for segregationists like Jesse Helms. 116 Think of the pattern of judicial nominees refusing to admit, like generations of nominees before them have, that Brown v. Board was correctly decided.117 That same Brown which led to Alexander v. Holmes County, which breathed justice into the segregated streets of my Yazoo City. As if equality was a mere political position.
Those numbers are footnotes and most of them refer to tweets or statements by President Trump.
This entire argument is bullsh**. The reason the courts have come under attack is because courts have injected themselves into policy disputes. Judges have decided that they are unaccountable masters of a servile population not the inferior of the three branches of government (if you think I’m kidding, read the sad history of Missouri vs Jenkins), the only branch of the government that the Founders delegated to the Executive and the Congress to select and remove. The Judiciary is in Article 3 to the Constitution for a reason, not because the Founders were dyslexic or innumerate. The idea that the judiciary should be some kind of a spoils system doled out, not on merit, but on race, ethnicity, sexual perversion, or any other factor someone dreams up is just bizarre. How, exactly, does having a judge raised on food stamps improve the quality of justice for everyone? Or is xe only hear cases from food stamp recipients? In the two years Donald Trump has been president, his administration has been subject to a concentrated form of lawfare where hostile judges don’t rule on the law, they rule on their political beliefs and what they think is the correct policy. Look at the history of the so-called “travel ban” if you want examples of this partisan guerrilla war being carried out against the administration. Or the absurd notion that a mere memorandum written by an Obama cabinet official is the law of the land (that would be DACA).
What is Reeves claim to fame? He voted to strike down DOMA (which, by any standard was judicial overreach). He struck down a 15-week abortion law. In fact, he took the occasion of that decision to opine that the pro-life movement was just like the Klan (this guy’s use of Klan references are as frequent and inane as Walter Sobchak’s Vietnam references) and that men–that would be “citizens” to you and me–had no business legislating on the issue of child murder (see Federal Judge Says Pro-Lifers Are Like The Klan And Men Should Have No Voice On Abortion). He’s also opposed to religious freedom unless you agree to bake that f***ing cake but, in his speech, he says that unless you have Muslims on the federal bench (how they get there without a religious test is somewhat unclear to me) you can’t have religious freedom.
And he read a great speech when he sentenced three white guys when he sentenced them to prison for murdering a black guy (never mind that they were caught, charged, indicted, and convicted by people other than Reeves, and never mind that Reeves’s involvement was just a federal pile-on to create a media event because the three guys had already been sentenced on capital murder charges in state court, because we all know shooting your mouth off is at least as significant as actually doing something).
Reeves is not a hero. He is Exhibit A in what is wrong with our judiciary. He has decided that the president and the Senate are racists because they, using their authority, aren’t appointing the right color people to the bench. He insists that federal judges who become combatants in a political fight must be free from criticism and from being called out. He shows no humility, no respect for the rule of law, no regard for the fact that the Founders directed that the political branches govern and did not want Americans ruled by people appointed for life with very limited accountability. You don’t even have to agree with President Trump to recognize that his critique of the role the judiciary is playing today is one of an unresponsive and irresponsible super-political branch that blithely assumes authority that it has arrogated to itself in defiance of the US Constitution.