Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Monday, November 26, 2018

High Level Thanksgiving Scuffle

While most of America was preparing to stuff their faces with turkey, mashed potatoes, and pie while simultaneously getting into heated family debates at the dinner table, the President and Chief Justice engaged in their own high stakes, high level "family" dispute.  On Tuesday, November 20, President Trump criticized the Ninth Circuit after a district court judge in California blocked an executive order dealing with asylum cases. In his comments, President Trump referred to the district court judge as an "Obama judge."

In a rare move, Chief Justice John Roberts responded publicly to President Trump's comments, stating, “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.”  Not to be outdone, President Trump tweeted on November 21, "Sorry Chief Justice John Roberts, but you do indeed have 'Obama judges,' and they have a much different point of view than the people who are charged with the safety of our country. It would be great if the 9th Circuit was indeed an 'independent judiciary,' but if it is why......" 

So, who is correct in this high stakes scuffle?  While, I think that they are both right in a sense.  As former Bush speechwriter Marc Thiessen points out in The Washington Post

If we do not have Obama judges or Trump judges, then why did Senate Republicans block President Barack Obama’s nomination of Merrick Garland to replace the late Justice Antonin Scalia in the final year of Obama’s term? And why did Democrats filibuster Trump’s nominee, Neil M. Gorsuch, to fill Scalia’s seat?

Even Roberts’s fellow justices know there is a difference. If there were no Obama judges or Trump judges, then why did Anthony M. Kennedy wait for Trump’s election to announce his retirement? And why doesn’t Justice Ruth Bader Ginsburg just retire now and let Trump nominate her replacement? Because they both want a president who would appoint a successor who shares their judicial philosophy. (And, lo and behold, Trump appointed a former Kennedy clerk, Brett M. Kavanaugh, to succeed him).

But, Chief Justice Roberts is also right that judges should be above politics.  Most cases that are decided would come out the same way regardless of which president appointed the judges deciding the case.  But those cases usually don't make for interesting news.  Furthermore, judges and justices don't always decide cases the way their nominating president would prefer, which is right.  As Thiessen notes, "We do have an independent judiciary. Judges are not beholden to any president, including the one who appoints them. The judiciary plays a key role in our system of checks and balances. 'Trump judges' should rule against Trump when he is wrong."  

Unfortunately, it seems like neither the President or the Chief focused on the equally interesting issue of nationwide injunctions....

As we move into the next holiday season, hopefully the high level scuffles will end and each branch of government can go back to doing its job in a professional manner.

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