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Politics Infect DC Circuit Court

Posted on Tuesday, January 23, 2024
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by AMAC, Robert B. Charles
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25 Comments
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Court of Appeals for the District of Columbia; politics

Last week’s decision – 7 to 4 – by the DC Circuit Court of Appeals confirms it. The DC Circuit’s credibility is in freefall, infected by raw politics.

In November 2018, then-President Trump was distressed when a judicial ruling against limits on illegal immigration appeared to reflect political bias against him. It looked like raw politics, and five years later helped open the border wide.

With frustration – now shared by many Americans –Trump read the opinion as not legal but political, not about judicial independence but the untouchability of an “Obama judge.”

Responding to Trump’s suggestion that Obama appointees were political activists, deliberately attacking a conservative President on politics, Chief Justice John Roberts “rebuked” Trump, and sought to project an “independent judiciary.”

Roberts, perhaps seeking to defend his vote for Obamacare, in retrospect a collection of untruthful representations that hurt Americans, attacked Trump.

Said Roberts: “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 all be thankful for.”

Like waking in a downpour to declare sunshine, Roberts’ words rang hollow then. They ring embarrassingly out of place right now. Here is why.

Years ago, clerking for a Reagan appointee on the US Court of Appeals, 9th Circuit, an important lesson was taught: “Judicial conservatives” make decisions “conservatively,” which means not politically.

Specifically, they look at the words of the Constitution, statute, and original intent. They do not import their personal wishes, opinions, likes, dislikes, politics, prejudices, hopes, dreams, or ideology.

Typically, they look for “plain meaning” in the law, even if against their political views, and apply that plain meaning to facts to render a judicial opinion, usually rather limited in reach.

That is not what political activist judges do. They think in terms of unrestricted, untouchable power, irrevocable except for impeachable acts. They “want to do good,” use their power to transform the world, and import or infer “better” meanings to “do good.”

Unfortunately, that is not what the judiciary is commissioned to do, not what the Founding Fathers asked of courts, not even what early justices thought right. The only job of the judiciary is to apply the letter of the law to facts of a “case or controversy,” and to review that process on appeal for integrity.

What we have today is a divided judiciary, state and federal trial and appellate courts, with the US Supreme Court atop both – and about half faithfully applying laws as written, the rest importing politics.

That is how we got the case just decided – against Trump, against executive privilege for White House communications for all presidents. In that opinion, decided 7-4, the DC Circuit Court’s activist majority – unafraid of being political – declared Trump’s prosecutor, Jack Smith, able to go behind a president’s back (sitting or former) and get communications held in secret by a company’s server to go after that president, rather than allowing the president reviewable executive privilege.

In short, they just made an abomination of two centuries of legal precedent. That decision seems indefensible on constitutional text, original intent, or caselaw supporting separation of powers and executive privilege (to protect presidential communications).  It is a bold, partisan slap at Trump.

As explained by the four judicially conservative, constitutionally faithful judges on the DC Circuit, who filed an incisive statement seeking to defend executive privilege for all presidents, this is a hack job.

Those four cerebral jurists are Neomi Rao, Gregory Katsis, Justin Walker, and Henderson, Karen Henderson, all judicially conservative, the last one appointed by George H.W. Bush, the first three by Trump.

In glaring distinction, without reasoning to their conclusory decision, the other seven slapped Trump hard and just walked away. These are Sri Srinivasan, Patricia Millett, Cornelia Pillard, Robert Wilkins, Michelle Childs, Florence Pan, and Brad Garcia – the first four “Obama judges,” the last three “Biden judges.”

So, here is the thing. Judicial rulings were never supposed to depart from the law or become an excuse for political axe-grinding or partisan warfare, nor wild political activism conducted from the bench. Federal judges are not free to get political, partisan, venal, or do as they please, issue no opinion, just slap down.

What has happened is sad, and gives the lie to Justice Robert’s lily-gilding claim that “Obama Judges” and “Biden Judges” do not exist. They certainly do.  No defense exists for the partisan, anti-Trump judicial activism we are seeing, assault on the Constitution, the Republican party, and Trump – yet we see it.

Politics – brazen political activism – has made its way to the highest benches in the country, ones we rely on to be non-political. Raw politics now infects the DC Circuit Court. Big picture, if we lose trust in our highest appellate courts, we are in real trouble, toast, one step away from lawless. We cannot let that happen.

Robert Charles is a former Assistant Secretary of State under Colin Powell, former Reagan and Bush 41 White House staffer, attorney, and naval intelligence officer (USNR). He wrote “Narcotics and Terrorism” (2003), “Eagles and Evergreens” (2018), and is National Spokesman for AMAC.

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PaulE
PaulE
5 months ago

Very well written article RBC. On point and totally accurate. Chief Justice Roberts has always been less concerned with the enforcement of laws based purely on Constitutional grounds and more concerned with how any decision might negatively impact his social standing inside the beltway. That doesn’t make for a good judge. As such, he was a poor choice to head the Supreme Court as a number of his personal votes on cases have shown.

As for the 9th Circuit Court, that has a long, long history of being one of the most liberal and biased courts in the federal system going back decades. Which is why Democrats have always tried to ensure any appeal of lower court rulings NOT in their favor, were heard by this Court. They basically rubber stamp whatever the Democrats want, so of course anything Trump or the Republicans want judged simply on an unbiased constitutional basis, that the Court is supposed to rely on for its decisions, is going to be rejected nearly every time.

Linda Nelson
Linda Nelson
5 months ago

Great article. To say that there is no political interference among the judiciary is ludicrous! It has been glaringly obvious in the persecution of Donald Trump.
It only shows how completely desperate the liberals are to prevent Trump from destroying their plan to remake the country into a Socialist utopia. We can’t let that happen!

Howard
Howard
5 months ago

In a very recent decision by SCOTUS, none other than Amy Coney Barrett, appointed by Trump, voted in the majority with Roberts and the liberal justices against Gov. Abbott and the state of Texas that putting up a wire barrier at Eagle Pass to stem the flow of illegal immigrants, while Biden’s administration has done little to enforce immigration laws and protect the border, was an unconstitutional infringement of the rights of the illegals to not be subjected to things that would imperil their lives. The Border Patrol was against this ruling, stating that the wire barrier did not present a danger to reaching illegals who were in possible imminent danger and that the ruling would only add to an increasing flow of illegal immigrants. Roberts has been a huge disappointment on the bench.

Kyle Buy you some guns,and learn how to shoot
Kyle Buy you some guns,and learn how to shoot
5 months ago

AAHHHHH 1984 is here. Kyle L.

Lawrence Greenberg
Lawrence Greenberg
5 months ago

The political Left has not had majority popular or voter support in this nation since the 1960s. The only way the Leftists (the so-called “Democrats”) win most elections is through cheating and fraud. As for advancing their agenda and passing legislation, their minority status generally makes that impossible. So they realized long ago that the only way to advance the Leftist anti-American, anti-freedom agenda is to get Leftist activist judges appointed at all levels of the federal and state Court systems. That way they can get approval for clearly unconstitutional laws and get Courts to make decisions in clear violation of existing law. The decision cited in this article is an excellent example.

Kathleen
Kathleen
5 months ago

When illegals commit crimes it has been the practice that they are allowed to somehow get away. Google illegal and rapist.

Theresa Coughlin
Theresa Coughlin
5 months ago

if judges want to make law, they need to LEAVE THE BENCH and run for elected office.

Gabe Hanzeli kent wa
Gabe Hanzeli kent wa
5 months ago

we need a law that automatically put an judge to bases their judgement on anything but the law in prison for life. that judge that pronounced the verdict before the case started in ny should be the first one put in prison.

David Millikan
David Millikan
5 months ago

The D.C. Circuit Court is nothing but Communist. They only protect and give the Fascist liberals Carte Blanche.

Jeanne Pimm
Jeanne Pimm
5 months ago

President Trump needs to learn how to vet these people better. Look what we got RINOS!

Robert Zuccaro
Robert Zuccaro
5 months ago

Fundamentally transforming Americs: they’ve not hidden this goal.

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