Tainted By Trump? Leave The Judiciary Out Of It

As resignations come in, with less than two weeks left until regime change, from cabinet secretaries to social secretaries, the former director of the NAACP Legal Defense Fund queried when Trump judges would resign.

Which of Trump’s 234 judicial appointees will resign, saying they can’t forever be linked to Trump? Anyone? Nope, didn’t think so. https://t.co/UnuVaIQXZb

— Leslie Proll (@LeslieProll) January 9, 2021

There are some confirmed Trump judges who, to be blunt, have no business on the bench. Too inexperienced to be entrusted to try their first case, they’re federal judges instead. It’s not merely goofy, but dangerously so. People lives and fortunes are in their unwashed hands, and being called “your honor” is no way to learn the basics of your craft.

As one wag, who has been sent out for trial before such a judge, said to me the other day, “how is she going to rule on objections when she wouldn’t know a good question if it bit her in the butt.” (I’ve taken poetic license with his words.) My recommendation was to settle quick, having had the experience of trying a case before an incompetent judge.

But for the most part, the judges nominated by Trump were respected lawyers, academics and judges before they were nominated. Maybe not your favor of judge, and often not mine, but fully legitimate and qualified nominees for the bench. Many already established their bona fides well before Trump was a twinkle in a QAnon believer’s eye, and their qualifications bear no connection to Trump. He was fed their names and pushed them along.

Even though Trump, given his ignorance of governance, thought they were “his” judges, as if the judiciary, like the Executive branch, was part of his mom & pop shop government where he was the boss and they were his underlings. As was made clear in the post-election legal frivolity, they might bear the taint of Trump’s name on their commission, that’s where the connection ended. They were then judges and he was, well, Trump.

But without Trump, they would not be judges, you exclaim. Have they no shame?

Perhaps, but so what? Unlike a cabinet or press or social secretary, they are not part of anyone’s team. Judges do not serve presidents. Judges cannot be fired by presidents for disloyalty or disobedience. Judges do not take orders from the executive. Once appointed, and appointed for life upon good behavior, they exist in a separate co-equal branch of government.

And judges appointed by presidents whose politics might not be in favor at the moment or whose legacies are tarnished have gone on to make decisions that have changed a nation. Consider President Eisenhower’s appointment of Earl Warren as Chief Justice of the United States, who then went on to fundamentally change the paradigm when it came to the constitutional rights of defendants.

Or more to the point, the only (first?) president to resign in disgrace, Richard Milhous Nixon’s nominee, Justice Harry Blackmun?

This shallow connection between the appointing president and the judge or justice, as if the former someone casts a dark shadow over the latter’s career and conduct in perpetuity, is childish. The judges appointed by Trump who should never have been appointed for their lack of experience and competence will likely, though not certainly as even dubious nominees sometimes grow into their robes, make bad judges. But they will be bad judges because of their own shortcomings, not because of the president who appointed them.

The phenomenon of seizing upon the most spurious connections between someone despised and anyone or anything remotely in their sphere might be popular to those desperately seeking a way to rid their world of what they perceive to be evil. Take Education Secretary Betsy DeVos, who is hated by the left, not the least reason being that she’s Trump’s choice. And yet, her Title IX regs restored a modicum of due process to campus sex tribunals, which Biden, particularly now with Constitution-hating  Vanita Gupta named as his Number Three at Justice, promises to eliminate. The new regs weren’t right because of DeVos or Trump, but because they provided due process regardless of which administration finally did the hard work under law to respect the Constitution.

For those posts that serve the president in the Executive Branch of government, they have a choice to make under the circumstances, not that resigning now does much more than signal disapproval after the halls of Congress have been breached. It’s better to do the right thing than not, and better late then never, perhaps, but it’s also not quite an act of exceptional bravery or fealty to the Constitution. That day came and went.

Judges, however, do not serve a president. They are not part of the Executive Branch. The ones appointed by Trump may not be proud of the name atop their commission, but their honor and fidelity to the law is entirely in their hands. Trump has nothing to do with it, and they have nothing more to do with Trump than as a conduit to their nomination.

As for those handful of judges who have no business on the bench, it will be up to them to determine whether to climb an extremely high hill to be worthy of the robe. Some may well prove to be bad judges, whether because they were never possessed of the intellect, integrity and temperament to serve in the role or because they’re too arrogant to grasp their inexperience and incompetence, and believe that donning a black robe somehow makes them smarter, funnier and more important than they ever deserved. But then, Trump just passed along the names he was handed. The Senate advised and consented.

There have always been federal judges of dubious worth and competence. This isn’t a Trump phenomenon, although it might be worse over the past four years than in prior administrations. But if they can’t keep their noses clean and their hands off people’s bodies, coke or the till, that’s why we have impeachment. In the meantime, we have circuit courts to reverse them. It’s not a perfect solution, but then the Founding Fathers expected better of America than electing a president who would foment insurrection. As we did before Trump, during Trump and as we will most assuredly continue to do after Trump, we will be critical of, and fight against, bad judges, bad law and bad decisions. That’s the American way.