March 18th, 2017

Obama’s judiciary legacy

I don’t recall that in my youth people spoke all that much about a president’s “legacy.” In recent decades it’s been all the rage, though, and that legacy usually gets evaluated and re-evaluated while a person is president, and not just afterwards.

Legacies are written by the winners, and the academics. What will Obama’s legacy be? It depends who’s talking or writing, and it depends what happens next.

I see his legacy as ISIS, for example, Obamacare, and a heightening of racial tension. I also see the election of Donald Trump as part of his legacy. Trump was elected for many reasons, but one of them was to create a legacy that involves undoing some of Obama’s would-be legacy (particularly concerning immigration, but certainly not limited to that). Whether Trump will succeed remains to be seen.

Lately we’ve had a dramatic demonstration of a particular part of Obama’s legacy, one that I am fairly certain is very dear to Obama’s heart and which has directly affected the ability of his successor Trump to do what he was elected to do. That legacy concerns the makeup of the federal judiciary, something to which a lot of voters don’t pay much attention. And yet it affects us dramatically in a host of ways, and its effects can persist.

President Trump will get to appoint many federal judges, too, now that the nuclear option has been activated (by the Democrats in the Senate, back when Obama was president) for these positions. That’s a sort of Obama legacy, too, and it’s a significant one.

The following was written in 2014, and it describes how Obama has changed the federal judiciary’s balance:

When President Barack Obama entered the White House in 2009, the federal appeals court based in Virginia was known as one of the most conservative benches in the country.

Two Obama terms later, Democratic appointees hold a 10-5 majority on the 4th U.S. Circuit Court of Appeals, a panel of which issued a groundbreaking ruling this April backing transgender rights…

Since President Barack Obama came into office in 2009, he has shifted the alignment of several federal appeals courts to the left, resulting in nine of the 13 now having a majority of Democratic appointees.

That certainly doesn’t reflect the party breakdown of the country, which is not 70% Democratic/liberal. But the federal appeals courts are about 70% liberal-dominated, thanks to Obama.

That’s a president’s prerogative, of course; to reshape the judiciary if and when he/she gets the opportunity. And Obama, as a lawyer and a former con law teacher, is well aware of what he was doing and why. It has borne fruit, as we can see by the recent decision blocking Trump’s EO: both judges are recent Obama appointees, Watson of Hawaii in 2013, and Chueng of Maryland confirmed in 2014.

I’ve already written at some length about what I think of their decisions, so I’ll just say here that I find their legal reasoning not just poor but shocking in its reach. Although I sometimes think I have lost the capacity to be shocked by such things, apparently I retain it.

When I was in law school, many moons ago, the main occupation of the student was to read judgments which often consisted of a majority and a minority opinion, plus dissents. The student therefore was exposed to the reasoning and logic on both sides. Usually I agreed with a certain point of view, as did most students (not always the same point of view, of course). But almost always I read the opinions of judges espousing the opposite point of view and felt respect—sometimes a grudging respect, but a respect nevertheless—for the tightness of their arguments and the aptness of their citations.

That’s not how I feel about these most recent decisions on Trump’s EO, which are troubling in a host of ways, and I’m not referring to their outcomes when I say that. Judges often seem to come to their conclusions and then find the legal justification for them. But in these cases the legal justification is simply too flimsy to sustain the conclusions. The decisions constitute an extreme and dangerous case of judicial overreach (one I’ve also described elsewhere, so I won’t bother to go into the details now).

These judges and these decisions are Obama’s legacy, too. When he was issuing his executive orders as president, it was always known that his executive orders could be reversed by a subsequent president. Most people—and certainly Obama—thought that subsequent president would be Hillary Clinton. It’s not; it’s Donald Trump. But Obama’s hand reaches out through his judges to tie Trump’s hands, at least for now.

Note, for example, that the 4th Circuit—the one the Reuters article described in 2014 as having switched under Obama from being “one of the most conservative in the country” to being 10-5 Democratic—is the very court to which Trump will be appealing Judge Chuang of Maryland’s decision to block his travel ban.

Why is Trump not appealing (at the moment, anyway) the Hawaii decision? Because the federal appeals court there is the 9th, which is even more liberal than the 4th.

[NOTE: I highly recommend this article. Here’s an excerpt from it (and by the way, the authors do not appear to be the least bit pro-Trump or conservative):

Our point here is not that the district judges are clearly wrong. It’s merely that they are not clearly right—on a whole lot of points. And in the face of real legal uncertainty as to the propriety of their actions, they are being astonishingly aggressive. It is not, after all, a normal thing for a single district judge to enjoin the President of the United States nationally from enforcing an action that the President contends is a national security necessity, much less an action taken pursuant to a broad grant of power by the legislature in an area where strong deference to the political branches is a powerful norm. And it really isn’t a normal thing for multiple district judges to do so in quick succession—and, moreover, to do so in the face of substantial uncertainty as to the actual parameters of the constitutional and statutory law they are invoking and powerful arguments that they are exceeding their own authority.

“Substantial uncertainty” is an understatement.]

15 Responses to “Obama’s judiciary legacy”

  1. Geoffrey Britain Says:

    The deeper the infection, the deeper the surgery needed to excise it.
    By any measure, political gangrene is the diagnosis.
    Constitutional crisis the prognosis.
    The remedies are; a Supreme Court ruling that restores sanity or Congressional Impeachment of federal judges or dissolution of the entire Federal judiciary less SCOTUS or an Article V Convention of the States.

  2. neo-neocon Says:

    Geoffrey Britain:

    To impeach and convict would require some Democrats to vote for it.

    Not going to happen.

  3. John Guilfoyle Says:

    While I certainly share your appraisal…there are too many voters among us who have no clue about Article V nor any stomach for it, particularly once the MSM start lying about it.

    And as our gracious host notes…Ds voting for…nope.
    Surgery will be a long one and a painful one.

  4. Frog Says:

    “It is not, after all, a normal thing for a single district judge to enjoin the President of the United States nationally…” Which is why they are DISTRICT judges, not pretend or wannabe Supremes.
    I think Trump should push the envelope by refusing to play the District Court judicial game, simply telling the Executive Branch he is the Boss, so get on with it. Like Tillerson is doing with the Chinese. The Dems will have a hissy fit.
    The last District Court judge to be impeached (for taking bribes) was Alcee Hastings, who immediately was elected to Congress and remains there today because of black-on-black voting. He was appointed by Carter, and a co-conspirator of his was pardoned by Clinton.
    Democrats, people of principle and great role models, yeah.

  5. Geoffrey Britain Says:

    neo and John,

    I agree that both are highly improbable. IMO, the best outcome is undoubtedly SCOTUS shutting down the illegal rulings. There is however a real possibility that SCOTUS will not do so.

    Which would leave us with an unresolved constitutional crisis, that being a President blocked from exercising his lawful powers and unable to protect the nation when any federal judge disagrees. Which is exactly what these judges have accomplished. So we’re already in a constitutional crisis, the current question being if a majority on the SCOTUS will honor their oaths of office and remedy the crisis.

    Of course, if SCOTUS does not support the Constitution Trump may well ignore the rulings. But SCOTUS ignoring the Constitution further invalidates that institution and further tears the constitutional fabric of the nation.

    Down this path lies civil war.

    In addition, should Trump ignore an invalid SCOTUS ruling, it will be added to his ledger of “high crimes and misdemeanors” and 20 RINOs may well vote to convict at Trump’s Impeachment trial. Which may well be the straw that breaks the camel’s back…

  6. Esther Says:

    Let him get a conservative judge in… I can’t believe how strongly I feel about that.

  7. Ymarsakar Says:

    They are guilty instead of not guilty. This doesn’t even qualify as will ful ignorance. They knew full well what their positions would entail and Hussein knew what it meant too.

    A way to surpass petty human limitations on political elections and go straight for human slavery.

  8. blert Says:

    Barry Soetoro flew both the pleading and the decision, personally, from his base in Washington to Honolulu. That’s the way it lays out.

    Read this and understand why. Everything was too quick and too pat.

  9. John Says:

    Judges can be removed.

  10. blert Says:

    The GOP is going to have to increase the size of the Supreme Court to 13 justices.

    The back-log is the reason why.

    The Ninth Circuit is going to have to be re-drawn — and cut down to the Pacific Coast of California. That zone alone generates enough legal action to keep the Ninth up past its ears in litigation. ( Silicon Valley, Hollywood, Biotech, … )

    A wholly new Tenth Circuit is required for inland California and the rest of the Ninth’s area of litigation.

    With its reduced size, the Ninth can shed some of its judges, too.

    Trump can then appoint centrist judges in large numbers.

    Lay-offs are also due in the 4th Circuit… based upon seniority.

    While Leftist judges are bad judges… they will not be impeached. They have too much Democrat support. ( cf Watson )

    Imagine TWO ‘racial’ slots for Harvard Law’s class of 1991… Soetoro and Watson. Neither made it on their grades.

    Of course they are buddies.

    Barry brought a pre-packaged plea and determination with him. That has to be what happened.

  11. Frog Says:

    despite the curious facts outlined in the zerohedge piece, it is not at all necessary for Obama and Watson to have conferred.
    Watson the leftist may well have written his opinion before the court appearance by ACLU.
    Conspirators need not get together to conspire. They use the same playbook.
    Watson wrote his opinion before the hearing. Simple as that.

  12. Frog Says:

    BTW, where is Barack Hussein now? In French Polynesia for a month, hoping to be a Paul Gauguin amongst the nubile adolescents, hoping to be back in Margaret Mead fantasy land?

  13. DirtyJobsGuy Says:

    This is nothing new or unknown. A properly advised and prepared Trump could have flanked this with some small effort. An order to State to increase the security review during visa applications from these country to include a number of things would have had the same or greater impact and would not have opened doors to the opposition. But Trump sort of promised this or more during the campaign (not a short term halt, but an indefinite ban). He is not an explainer or a tactician but a publicity generator. That doesn’t really work. The Administration will have to fully staff the in department legal advisors for each cabinet post to avoid these landmines while accomplishing what they do. Yes he can appoint new judges and should get on with this with as little public comment as necessary. Does he really want to win or just appear to win and be thwarted?

  14. Frog Says:

    DJG seems hung up on Mr.Trump’s tweets and overlooks his clear policy initiatives. He complains that Mr. Trump is a publicity generator and wants him to get on with as little public comment as possible.
    You are perhaps opposed to comments which do in fact clarify and explain, even as you class him a non-explainer?

  15. Artfldgr Says:

    Seventy years ago this week — on March 21, 1947, to be exact — President Truman issued an executive order that caught some of his most die-hard supporters by surprise.

    The order, writes Robert Justin Goldstein in Prologue magazine, “required that all federal civil service employees be screened for ‘loyalty.’ [It] specified that one criterion…would be a finding of ‘membership in, affiliation with or sympathetic association’ with any organization determined by the attorney general to be ‘totalitarian, Fascist, Communist or subversive’ or advocating or approving the forceful denial of constitutional rights to other persons or seeking ‘to alter the form of Government of the United States by unconstitutional means.’ ”

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Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.

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