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.