The most critical form of judicial independence, that is the independence to decide the law in a fair and impartial way even if that means deciding it in favor of a hated accused criminal, is rarely defended in popular media. But the concept is very popular when used in favor of progressive political preferences, to defend judicial activism and overreach masquerading as constitutional jurisprudence.
President Trump’s public criticisms of the Ninth Circuit’s order blocking enforcement of his temporary travel restrictions drew the expected and usual ire from the media and from both ends of our political establishment. Continuing the narrative they have pushed from the time it became inevitable that Donald Trump would be the Republican nominee, they cried that the President’s statements were a threat to the independence of the judiciary itself as enshrined in the United States Constitution. Editorials, op-eds, and articles from the usual suspects including the Washington Post, CNN, and even some conservative organizations sounded the alarm. This, of course, supported the political and media establishment’s primary narrative that the election of President Donald Trump would mean the end of American democracy itself.
Of course, the double standard from the establishment and media that we’ve come to expect applies to the idea that criticizing judges is bad for our system of government. Case in point, the infamous Stanford University rape case, where an athlete was convicted of sexually assaulting a female student and received a mere six month jail sentence. CNN and some of the same media outlets listed above participated in and drove a campaign to name, shame, and force the presiding Judge Aaron Persky off the bench.
Where was the concern for judicial independence then? Even if you strongly disagree with the sentence (as I do), is it proper to force out a judge for imposing a sentence that the law allows in a criminal case? Of course, an elected state court judge can be accountable at the ballot box and even recalled by the voters for abusing his office. Moreover, the California legislature is free to impose mandatory minimums for sex crimes to limit the discretion of judges. But that remedy must be carefully considered. Judges who hear individual cases should have the ability to use their discretion to dispense mercy and, even, leniency when and where they determine it is due.
Without judicial independence, judges would be unable to render fair and impartial decisions based on the law alone. Too often they might be motivated by questions of whether their decisions are unpopular, or favor the powerful and well-connected over the weak, the criminal, and the despised. This is far different from allowing life-tenured federal judges to unduly interfere in political questions against the actions of elected political actors, unless it is plain and clear from the text of the law or the Constitution that the elected political actor has gone outside of lawful bounds.
If we are to be a government “of the people,” our elected officials, including the President of the United States, must be free not only to criticize, but also to exercise lawful checks and balances against the power of of judges acting as usurpers. When judges use their constitutional authority to decide “cases and controversies” to effectively nullify a lawfully elected democratic government, it should be considered outrageous when our elected officials give that kind of action undue deference. Congress, should immediately, as others have suggested, use their power under Article 3 of the Constitution to limit the jurisdiction of lower federal courts. We should consider even the exceptional remedies of impeachment against individual lawless judges, and nullifying their lawless orders as our Founding Fathers and early presidents like Thomas Jefferson and Andrew Jackson suggested may be necessary from time to time.
And of course, in order to avoid a constitutional crisis and limit the damage to the legitimacy and prestige of the federal courts, the Supreme Court must decisively overturn the Ninth Circuit’s order.
Consider the chaos in the collapsing socialist state of Venezuela, with inflation predicted to rise over 1,600%, and the people reduced to eating dogs, cats, and flamingos, and unable to find basic healthcare. The deeply unpopular socialist government led by President Maduro, refuses to relinquish power despite the will of the democratic majority. The Supreme Court of Venezuela, with judges handpicked by the government during the Chavez era, pronounced that the entire elected legislative body of the country, is “in contempt” and seized law making authority unto itself.
In a similar fashion, the judges of the Ninth Circuit Court of Appeals have seized foreign policy authority from the President and the Congress, blocking President Trump’s temporary travel restrictions imposed under the broad powers conferred by the Immigration Act of 1952.
When candidate and then President Trump spoke critically of individual judges was this an “assault on the independence of the judiciary” and a “threat to democracy?” To the contrary, the lawless and illegitimate pronouncements from the ruling trial courts and the circuit majority from the Ninth Circuit are the real affront to our American constitutional system of government. An independent judiciary does not mean that federal judges must have unquestioned power to interfere in politics. The “living constitution” the progressive judges seek to impose on us, where the actual text of the constitution as ratified by the people is ignored, is a dead and useless constitution. Judges, especially unelected life-tenured ones, must be subject to the checks and balances of the other two branches of government.
Ultimately, the law and the Constitution belongs to “We the People.”