The Resistance Starts To Infect Our Courts

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

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We wonder what the Chief Justice of the United States, John Roberts, makes of that headline about the Ninth United States Circuit Court of Appeals. “Trump has flipped the 9th Circuit — and some new judges are causing a ‘shock wave,’” the headline said. Los Angeles Times attributes the claim to one of the circuit’s own judges. Chief Justice Roberts can’t be happy.

The Chief Justice, remember, was so irked when President Trump laced into “Obama judges” that he issued a rebuke. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” he said. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

Mr. Trump would have none of it. “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’” Mr. Trump retorted. Obama judges, he added, “have a much different point of view than the people who are charged with the safety of our country.” The New York Times quoted one law professor, Josh Blackman, as warning the Chief’s statement could “backfire.”

So welcome to the 9th Circuit. The latest is that the judges who heretofore had held sway in the nation’s largest — and most liberal — circuit are now complaining to the press. The judge who says Mr. Trump has “flipped” the 9th Circuit is Milan D. Smith, Jr. He was moved to talk by the fact that Mr. Trump won confirmation of ten new judges to the Ninth Circuit.

That’s more than a third of the circuit and a 40% increase in three years from the seven judges President Obama was able to seat in his entire eight years. LATimes reports that some of the Trump judges “have quickly won the respect of their colleagues.” It quotes one judge, though, as complaining: “Ten new people at once sends a shock wave through the system.”

Los Angeles Times cites unnamed judges as saying that one Trump appointee, Judge Daniel Collins, early on appeared, as the paper paraphrased it, “oblivious to court tradition.” Judge Collins also apparently called for en banc review of five decisions by three-judge panels and allegedly used combative language. Land sakes!

That might seem like small beer, except it comes as some judges around the country seem sympathetic to the so-called resistance to the Trump presidency. District courts issuing national injunctions against the president have recently drawn warnings from at least two Supreme Court members, Justices Thomas and Gorsuch. “This is not normal,” Justice Gorsuch wrote.

Then, after 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.”

That strikes us as sage advice for all 870 of the judges commissioned under Article III of the Constitution. It may not be easy for a judge to keep his cool in these times. The Wall Street Journal, though, has already reported that Democrats’ “Resistance left” could try to pack the Supreme Court by creating new justices. In which case, the whole Article III branch could yet be “flipped.”

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Drawing by Elliott Banfield, courtesy of the artist.


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