Judges’ Identities are Irrelevant

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Merrick Garland, Barack Obama

Relying on the individual identities of judges in legal decisions is what Trump wants to do. His opponents should refuse to do so.

One thing liberals and conservatives, both real ones and faux, degraded, U.S. ones, should be able to agree on is the rule of law. Conservatives like law because it is inherently conservative in some sense as the accretion of the society’s considered wisdom reaching forward to try to control people’s behavior in the future. Liberals like it because, in the Lockean dispensation, it it the mechanism by which humans provide practical protection for their natural rights. You have a natural right to life, but that may be irrelevant without a government that prohibits and punishes murder through positive law, that is through statutes with criminal penalties and mechanisms to enforce those penalties.

The Founders were big fans of the rule of law. They liked laws that enforced their ownership of slaves, so this is far from a universally beneficial concept, but it was a major change in the law that eliminated slavery as a formal institution in the United States. People have argued that racist enforcement of laws that look racially neutral on their face has produced a form of de facto slavery in the modern United States, but that is a problem the deep seated racism in our culture, not necessarily with laws as such.

The Founders found annoying many things about the government of Great Britain as they experienced it in colonial America. High on their list was the fact that judges all officially represented and worked for the monarch and so tended to make decisions as the monarch wanted, no matter what the law said. The U.S. government under the Constitution has no monarch, but it does have a potentially monarchical figure in the president, and a Congress that could exceed its powers and try to coerce federal judges, so the Founders gave federal judges their positions “on good behavior,” meaning that showing criminal conduct is the only way to remove one, and prohibited Congress from reducing their salaries to try to starve them into submission.

If you like the many, many decisions in which various federal judges have stopped Trump from taking any number of hideous actions that violate federal law, then you like independent federal judges. Fulminate as he may, Trump cannot change the decision, even of a “so called judge,” as Trump said of a highly respected federal judge who issued a stay on his Muslim ban. That judge got his appointment from George W. Bush.

Now, Trump has pointed out repeatedly that the judge who just ordered his accounting firm to send his financial information to the House of Representatives got his appointment from Barack Obama.

Pardon my French, and for shouting, but THAT DOES NOT MAKE A DAMNED BIT OF DIFFERENCE.

This kind of stupidity is Trump’s stock in trade.

Now, people who do not like Trump — they are legion — are snickering that Trump’s appeal of the trial judge’s decision will go to the Court of Appeals for the District of Columbia, where the chief judge is Merrick Garland, the judge whom the Republicans refused to consider for a seat on the Supreme Court when Obama nominated him in 2016 to replace Antonin Scalia, the seat Neil Gorsuch occupies.

So, Vanity Fair, which cares more about being arch than being well informed, has the headline, “Trump Begs Merrick Garland to Keep his Financial Lies Private.”

Anyone who thinks Judge Garland was qualified to serve on the Supreme Court, that is, who thinks he is an intelligent, principled man who decides cases according to the prevailing law, will spit this claim and its underlying argument out like rancid caviar.

The trial judge’s opinion makes the really obvious point that the Constitution gives to the House of Representatives the “sole power of impeachment,” which means the sole power to decide which public officials deserve to undergo trial in the Senate for alleged criminal behavior, potentially leading to removal from office.

Impeachment has happened many times in our history, most recently in 2010, but usually against federal judges. We have initiated impeachment proceedings against three presidents, Andrew Johnson in 1868, whom the Senate found not guilty, Richard Nixon in 1974, who resigned to avoid trial in the Senate, and Bill Clinton in 1998–99, whom the Senate found not guilty.

Trump’s position in the present case boiled down to the claim that the House did not have the power to investigate his behavior, which is obviously idiotic if they have the power to accuse him of a crime that could lead to his removal from office. Rank nonsense on its face. The Founders, as we have seen, insulated federal judges to ensure the rule of law. They also wrote the guarantee of due process of law into the Constitution. We don’t usually think of it this way, but basic to the concept of due process of law is the idea that no one should suffer accusation of criminal conduct without compelling evidence to support the charge. The Constitution also requires indictment by a grand jury for most crimes, which is just a way of testing the evidence before officially leveling the charge.

The Fourth Amendment does prohibit unreasonable searches, but that assumes that law enforcement will search for evidence of criminal conduct. It just imposes specific rules on how they may go about doing so.

The trial judge’s opinion, that is, rests on an impeccable legal and logical argument, and we like that, especially if we want to remove Trump. We hear incessantly about “fake news” and a “post-truth society,” all of which helps Trump, who knows nothing about law or legal procedures and makes policy decisions without any regard for reason or evidence.

The problem with Trump’s conduct is that it is lawless. Like it or not, the remedy is to hew closely to the rule of law, which is emphatically on the side of reason and logic, and against Trump, in this instance.

Granting that the rule of law is not a flawless concept and that the laws we have are far from perfect, right now, those laws are the best mechanism we have to get rid of Trump.

Who appointed the trial judge and Judge Garland’s personal pique at Republicans in general and Trump in particular should play zero role in deciding this matter. We should be happy as pigs in slop that Trump loses because his position is legally stupid and that even one of his own appointees would have a very hard time finding that Trump had presented a valid legal argument.

Ignore the individual identities of federal judges.

Written by

Uppity gay, Buddhist, author, historian.

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