Tag Archives: federal judiciary

Federal courts aren’t ‘political’? Guess again

The nation’s founders had the right idea when they created a Constitution that called for lifetime appointments of federal judges.

Part of their intent was to take politics out of the judicial system. Sadly, that intent has been lost. It’s gone. The federal bench is, um, highly political.

Case in point: U.S. Senate Republicans today filled a federal judgeship they kept empty for the past six years during the Obama administration. They voted 49-46 — along party lines — to seat Michael Brennan on the Seventh U.S. Court of Appeals. President Obama had nominated Victoria Nourse to that bench in 2010, but it was held up by Wisconsin U.S. Sen. Ron Johnson (pictured above), who exercised a Senate rule that allows a home-state senator to block anyone he or she chooses; Nourse pulled her nomination in 2012.

Indeed, one of the consequences of our federal elections is the federal judiciary and who gets seated. Presidential elections are particularly consequential in that regard. Presidents have the power to set judicial courses for generations through their appointment powers. You’d better believe, too, that politics matters when the Senate considers who to confirm or reject when they exercise their “advise and consent” authority.

Are the federal courts more political than, say, state courts? Hardly. In Texas, we elect judges on partisan ballots. Judicial philosophy or legal credentials take a back seat to which party under which the candidate is running, or so it appears at times in Texas.

The founders sought when they were creating a new nation to deliver a system of justice that would be free of political pressure. I only wish their dream would have come true. More than two centuries later, we hear laypeople/politicians second-guessing judicial rulings — especially when they lack any base of knowledge of the law upon judges make their decision.

It wasn’t supposed to be this way when the nation’s founders were building a nation “of laws, not of men.”

Federal courts: not really politics free

The federal judiciary is supposed to be free of political pressure.

But is it? Really? Oh, I tend to think not.

I find myself looking at federal court rulings a bit differently these days. For instance, the D.C. federal judge who ruled that the Trump administration must keep honoring the Deferred Action on Childhood Arrivals program is an interesting fellow.

Judge John Bates is a President George W. Bush appointee. Thus, I tend to take his decision a bit more seriously than I would if he were appointed by President Barack Obama. Why? Because he upheld an Obama administration decision to create DACA in the first place. DACA, by the way, is the rule that protects U.S. residents who were brought here illegally by their parents; they’re called “Dreamers” because they are pursuing the “American Dream.” Get it?

The founders set up a federal judiciary that was supposed to be free of political pressure. It really isn’t. The judges who get these lifetime appointments are nonetheless examined carefully by people such as me and others who look for political reasons to endorse or condemn whatever ruling they hand down.

That is not to say that they base their decisions according to what others might say about them. Indeed, several Supreme Court justices over the years have veered sharply away from the course the presidents who nominated them hoped they would travel. And they get their share of condemnation from those who want them to adhere to the presidents’ political leanings.

But … they are political appointees. Make no mistake about it.

Judicial nominee hits the road after embarrassing moment

Matthew Peterson got himself nominated for a lifetime job as a federal judge.

Then he had to go before the Senate Judiciary Committee. Sen. John Kennedy, R-La., had the temerity to ask Peterson a series of questions.

Had he ever tried a criminal case? A civil case? Had he ever argued before an appellate court? Umm. No on all three questions.

The exchange went viral, thanks to Sen. Sheldon Whitehouse, D-R.I., sending out via Twitter. See the video here.

Peterson withdrew his nomination today. He told Donald Trump he didn’t want to be a “distraction.”

I baffled on where to begin with this one.

I’m glad Peterson pulled out. He doesn’t belong on the U.S. Court of Appeals in the District of Columbia. The young man needs some experience, um, trying cases in an actual courtroom. 

The most stunning aspect of this nomination is how in the world the president of the United States could put someone so wholly unqualified up for examination by the Senate judiciary panel. Did the president’s “fine-tuned machine” get all gummed up? It clearly failed to vet this fellow.

Good grief, man! I would think one of the questions one could ask a judicial nominee would be: Have you ever tried a case — in a courtroom? In front of a judge and a jury?

If the answer is “no,” then you move on to the next name on your list. Wouldn’t that work?

How about ‘extreme vetting’ of judicial nominees?

Donald John Trump wants to employ “extreme vetting” of immigrants seeking entry into the United States of America.

Fine, but how about vetting nominees to the federal bench, Mr. President? I mean, at least a cursory vetting might enable the president to nominate men and women who know certain basics about the law.

Matthew Peterson sat before the U.S. Senate Judiciary Committee this week and managed to utterly fluff simple questions about how he would apply certain legal tenets. He has been nominated to a spot on the U.S. Circuit Court in the District of Columbia.

He, um, didn’t do well at his hearing.

Check it out here.

Peterson has never tried a case. Senators asked him about his criminal law trial experience. None. His civil trial experience. None.

The video of Peterson stumbling and bumbling his way through the excruciating committee interview has gone viral, which is a rarity in itself, given that judicial nominee hearings usually aren’t the stuff of social media tittering.

The president has boasted of his administration running like a “fine-tuned machine.” Mr. President, a fine-tuned machine wouldn’t present judicial candidates who cannot answer basic questions from the men and women who must approve these nominations.

‘Fine-tuned machine’ needs a serious lube job

The president of the United States has described his administration as functioning like a “fine-tuned machine.”

Such a description implies a thorough vetting of those seeking high-level government appointments, yes? Sure it does.

Why, then, did a Donald Trump nominee for the federal bench fail to report something that poses a potential conflict of interest? You know, that he is married to a senior White House lawyer.

Brett Talley failed to disclose that he is married to Ann Donaldson. Talley wants to be a federal judge; Donaldson works for an organization — the White House — that could face a challenge and appear in the very court where Talley presides.

Mr. President, we have a problem

Doggone it, man. Isn’t that a problem? What’s more, why didn’t Donaldson step forward and inform the White House judge-search team that there might be a problem with her hubby being seated on the federal bench?

And there’s an interesting back story, too. Talley wants an appointment to a judgeship that serves a district in Alabama, which is being tossed and roiled at this very moment by a scandal involving Roy Moore, the Republican candidate for the U.S. Senate who’s being accused of making improper sexual advances on underage girls.

Aw, what the heck. I digress … you know?

Talley also has never tried a case. His legal experience is quite limited and one can question whether he actually is qualified to preside as a federal judge.

Is this how the president finds the “best people” to serve the federal government? Is this how a “fine-tuned machine” operates?

Umm. No.

Stunning profile may emerge on local judicial bench

The Texas Panhandle received excellent federal judicial service for nearly four decades, thanks to the steady hand provided by U.S. District Judge Mary Lou Robinson.

She is stepping aside. A new president has nominated a replacement for Judge Robinson. But some potentially chilling information is coming forth about the new guy.

The Texas Tribune is reporting on statements made by another judicial nominee who is linked to the man Donald Trump has selected for the Northern District of Texas federal bench. Jeff Mateer formerly served as general counsel for a right-wing advocacy group, the First Liberty Institute; Matthew Kaczmaryk — Trump’s choice to succeed Robinson — is deputy general counsel for the same group. Mateer now works in the Texas attorney general’s office. Follow me for a moment.

Mateer is Trump’s pick for another federal judgeship. He reportedly believes transgender children are part of “Satan’s work.”

In a 2015 speech, Mateer said this, according to the Texas Tribune Texas Tribune, about the U.S. Supreme Court decision that legalized gay marriage in the United States: “I mean, it’s disgusting,” he said. “I’ve learned words I didn’t know. There are people who marry themselves. Somebody wanted to marry a tree. People marrying their pets. It’s just like — you know, you read the New Testament and you read about all the things and you think, ‘Oh, that’s not going on in our community.’ Oh yes it is. We’re going back to that time where debauchery rules.”

There you have it: Same-sex marriage equals “debauchery,” according to Mateer. The nation’s highest court ruled that the 14th Amendment to the Constitution guarantees that all Americans are entitled to “equal protection under the law,” meaning that gay Americans have a constitutional right to marry people of the same gender.

My question is whether Kaczmaryk is cut from the same mold as Mateer, given that they both work for the same ultra-right wing advocacy group.

Is this the kind of justice we can expect from the federal bench in Amarillo? Please say it won’t be so.

‘Law and order’ boast gets doused by pardon

Donald Trump promised to be “the law-and-order president,” which harkened back to the call issued in the late 1960s by Richard Nixon’s campaign for the presidency.

The way I see it, though, Trump’s pardon of former Sheriff Joe Arpaio douses the president’s law-and-order pledge bigly.

Arpaio once served as sheriff of Maricopa County, Ariz. He made a big name for himself by his tough policies on illegal immigration. He would racially profile individuals he assumed were entering the country illegally; he would detain them, often in brutal conditions.

A federal judge ordered Arpaio to cease that round-up policy. He refused. The judge put him on trial. The sheriff was convicted. Oh, and then he lost his re-election bid along the way.

How does this comport with the president’s pledge to be the law-and-order guy? It doesn’t.

The president stuck his thumb in the eye of the federal judicial system. He, in effect, said the rule of law doesn’t apply. The pardon clearly is within the president’s realm of power. Some arguing that the pardon might be illegal; I won’t go there.

A pardon’s legality doesn’t necessarily make it right. In this case, it pulls precisely against the pledge the president made to emphasize law and order.

By flouting the rule of law, therefore, the president has declared war as well on any semblance of order.

Don’t pardon ‘Sheriff Joe,’ Mr. President

Donald John Trump Sr. offered a titillating morsel for those among his political base to chew on.

He spoke Tuesday at a campaign rally in Phoenix and said former Maricopa Sheriff Joe Arpaio is “going to be just fine.” The implication is that Trump might issue a presidential pardon for “Sheriff Joe.” 

Arpaio has been convicted of ignoring a court order that demanded he stop conducting an “immigration roundup” that sought to locate illegal immigrants sneaking into the United States.

I hope the president forgoes a pardon for Arpaio. A friend of mine who happens to be a former prosecutor in Amarillo said this regarding a potential pardon for the fiery former sheriff:

“A pardon for a criminal conviction is supposed to take into account some equitable or humanitarian reason to remove the conviction. A pardon for someone who knowingly violated a federal court order and is being held in contempt is in my view worse. It sends a message that the judiciary is not to be honored. A dangerous precedent, and a slap in the face to the alleged sheriff’s victims.”

Amen to that.

Then again, the president has demonstrated already a penchant for dishonoring the judiciary … such as when he questioned whether a federal judge could adjudicate a case involving Trump University “because he’s a Mexican”; the judge, by the way, was born in Indiana to Mexican-American parents. Or when he referred to a “so-called judge” who struck down Trump’s ban on Muslims entering the United States.

Trump said Arpaio was convicted of “doing his job.” The crowd in Phoenix roared.

Actually, Mr. President, “Sheriff Joe” was convicted of ignoring what a judge told him to do. We are, after all, a nation of laws.

Isn’t that right?

Get set to watch further politicization of federal judiciary

Now there are “reports” that Anthony Kennedy is considering an end to his judicial career.

The Supreme Court associate justice’s retirement, if it comes next week as some are thinking it might, is going to produce something I suspect the nation’s founders didn’t anticipate when they wrote the U.S. Constitution.

That would be the extreme politicization of the judicial selection process.

Those silly men. Sure, they were smart. They weren’t clairvoyant.

The present-day reality is that the process has become highly political. When did politics play such a key role in selecting these jurists? It’s hard to pinpoint the start of it all. Some might suggest it began with President Reagan’s appointment in 1987 of Robert Bork to succeed Lewis Powell, who had retired. The Senate would reject Bork largely on the basis of his vast record of ultraconservative writings and legal opinions.

Clarence Thomas’s nomination in 1991 by President George H.W. Bush also produced plenty of fireworks, owing to the testimony of Anita Hill, who accused Thomas of sexual harassment and assorted acts of impropriety.

On and one it has gone, through Democratic and Republican administrations ever since.

The founders wrote a provision into the Constitution that allows federal judges to get lifetime appointments. The idea was to remove politics from their legal writings. Indeed, some judges have taken seats on the U.S. Supreme Court with their presidential benefactors expecting them to toe a philosophical line, only to be disappointed when they veer along uncharted judicial trails.

It’s too early to tell whether Justice Neil Gorsuch will fall into that pattern. He was Donald J. Trump’s initial pick for the high court. The president might get to make another appointment quite soon. Then again, maybe not.

Whenever that moment arrives, you can take this to the bank: The next Supreme Court pick is going to ignite a whopper of a political fight if one side of the Senate sees a dramatic shift in the court’s ideological balance.

Something tells me the founders might not have anticipated these judicial nominations would come to this.

More ‘so-called judges’ deal blow to travel ban

Donald J. Trump stepped into a serious political minefield when he labeled a federal jurist who disagreed with his ban on Muslims entering this country a “so-called judge.”

Mr. President, here’s a flash. More of those “so-called” judges have joined in rejecting your revised travel ban.

http://thehill.com/regulation/335359-trump-travel-ban-on-shaky-ground

The latest rejection comes from the 4th U.S. Circuit Court of Appeals, based in Virginia. The court ruled that the president’s second travel ban is as discriminatory against a certain religion as the first ban. The judges scolded him, too, for seeking to pursue a policy they deem to be unconstitutional.

It doesn’t look good for Trump’s effort to ban entry into this country to those who practice a certain religious faith. The 9th Court of Appeals is set to hear another case that was struck down by a federal judge in Hawaii; the 9th Court had rejected the first ban initially.

The case is likely to end up in the U.S. Supreme Court’s lap. Indeed, the nine men and women on the nation’s highest court well might decide against even hearing the case, which would let the lower-court rulings stand.

We are witnessing from the front row an exercise in the checks-and-balances that the nation’s founders intended in the 18th century when they drafted the U.S. Constitution.

They did well. Don’t you think?