Guest post by Real Clear Wire.
So far, more than 100 federal court judges have ruled against the Trump administration in hundreds of lawsuits filed by states, unions, nonprofit organizations and individuals.
While some of these rulings are fairly grounded in the Constitution, federal law, and precedent, many are expressions of primal rage from judges offended by the administration, and moving at breakneck speed to stop it. According to a Politico analysis, 87 of 114 federal judges who ruled against the administration were appointed by Democrat presidents, and 27 by Republicans. Most of the lawsuits were filed in just a few districts, with repeat activist judges leading the opposition.
Lawsuits against the administration may be filed in the District of Columbia and, often, also in other districts. Initially, cases are randomly assigned. Plaintiffs focus on districts with predominately activist, progressive judges. Because related cases are usually assigned to the same judge, later plaintiffs file in districts in which related cases were assigned to friendly activists.
Conservative judges generally believe they should interpret the law and avoid ruling on political questions, while many liberals see themselves as protectors of their values. After 60 years of domination by activist liberals, the Supreme Court and conservatives on appeals courts are finally demanding that district court judges respect the Constitution. The Supreme Court is also re-evaluating precedents established by far-left justices who substituted their values for the words and intentions embodied in the Constitution.
To date, the Supreme Court has reversed or stayed about 30 lower court injunctions blocking the administration, and appeals courts have reversed or stayed another dozen. Even Justice Ketanji Brown Jackson imposed an administrative stay on a district court decision requiring the immediate resumption of SNAP (food stamp) payments.
Federal judges who oppose Trump’s agenda are openly opposing the Supreme Court. In April, D.C. Chief Federal Judge James Boasberg sought to hold administration officials in criminal contempt for violating an order the court had vacated. In May, Fifth Circuit Court of Appeals Judge James Ho criticized the court’s demand that district courts act promptly on administration requests. In a September ruling, Boston Federal Judge Allison Burroughs challenged the court for expecting lower courts to treat its emergency orders as binding legal precedent.
Ten of 12 federal judges interviewed by NBC News in September, and 47 of 65 federal judges responding to a New York Times survey in October, thought the court was mishandling its emergency docket. They described orders as “incredibly demoralizing and troubling” and “a slap in the face to the district courts.”
Deservedly so. Though the Supreme Court and appeals courts judges have rebuked district court judges for ignoring higher courts and abusing their authority, they continue to do so with rulings focused on identity politics, and a progressive lens on the woes of immigrants, minorities, women, and workers. They likely expect to be reversed on appeal, but they secure wins by causing delay and creating fodder for progressive activists to rally their supporters.
There is little that can be done about these judges. Removal requires a majority vote in the House and a two-thirds vote in the Senate. With Democrats supporting these judges, that is unrealistic.
Just a few of the dozens of examples of politicized judicial decisions:
In May, Myong Joun, a Biden appointee in Boston, enjoined layoffs at the Education Department in a decision featuring an encomium to its anti-discrimination mission. The Supreme Court stayed his injunction.
Despite this precedent, Susan Illston, a Clinton appointee in San Franciso, issued a nationwide injunction prohibiting the administration from firing union employees during or because of the government shutdown. Ignoring settled law, she bemoaned the “trauma” of workers who had been under “stress” ever since Trump’s election. Illston gambled correctly that the shutdown would end before her order could be reversed.
Boston Federal Judge Indira Talwani went further. Declaiming her fear that defunding Planned Parenthood would deprive women of access to abortions, she elided Article I of the Constitution, which requires all federal spending be approved by Congress, nullifying a duly enacted statute that suspended funding of large abortion providers for a year. By the time she is reversed, the suspension will have expired.
In June, after San Francisco Federal Judge Charles Breyer enjoined Trump from federalizing the California National Guard, a three-judge panel of the Ninth Circuit unanimously stayed his order, explaining that on military matters the president’s judgment stands unless it is dishonest. Nonetheless, Oregon Federal Judge Karin Immergut subsequently blocked deployments in Portland, substituting her assessment of the situation for the president’s.
An Obama-appointed judge recently interviewed by NBC explained, “Trump derangement syndrome is a real issue. As a result, judges are mad at what Trump is doing or the manner he is going about things; they are sometimes forgetting to stay in their lane.”
Trump sometimes exceeds his authority. Activist judges, who self-reverentially believe progressive technocrats and judges are democracy’s guardians, substitute “frequently” for “sometimes.” The Constitution and the Supreme Court disagree.
This article was originally published by RealClearPolitics and made available via RealClearWire.
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