I don’t recall in my lifetime a period where federal judges at all levels have been under attack, both direct and indirect. Any media report of a decision worthy of national attention invariably includes which president appointed the deciding judge, and/or the makeup of a panel of judges identifying the president or political party the judges can be traced back to.
The obvious implication is that judges are biased---unless they rule your way. We have lost trust in our judiciary, something that can only undermine our commitment to support the Constitution. For 230 years, the Civil War excepted, Americans have willingly or grudgingly supported the Constitution and observed the rule of law knowing that it is the glue that holds our society together.
Today we have a president who attacks judges when they don’t go his way. Probably the most notorious example was referring to Judge Gonzalo Curiel as “Mexican”, “Hispanic”, and “Spanish” when Curiel presided over the class action fraud suit against Trump University. As it turns out, Curiel is American born, but his nationality or ethnicity should never have been in question. At other times related to Trump’s travel ban on Muslims entering the U.S. from certain countries, Trump identified the judge(s) by the president who appointed them to infer he wasn’t being treated fairly, earning a rebuke from U.S. Supreme Court Justice John Roberts.
President Barack Obama in his 2010 State of the Union address, slammed the five justices (not by name) who voted to overturn longtime precedent related to campaign finance laws. It was inappropriate and indefensible, and while not minimizing it, it was the decision he criticized versus singling out any one or several judges for a personal attack.
The first person who doesn’t hold political, religious, or other beliefs that shape who we are has yet to be born. I suspect people forget that when they judge our judges and other professionals of every variety who work in government. But by definition a professional can set aside these biases and do their job effectively keeping in mind the oath they took to their profession or the Constitution.
Judges at every level take an oath to support, defend and preserve the Constitution and the laws of the land. As human beings, they will naturally disagree with some interpretations of the Constitution that have been handed down, and they will disagree with various laws passed by legislative bodies. They are expected, though, to adhere to various rules and procedures in following precedent and in interpreting laws as applied to difficult factual scenarios that are not black and white obvious.
If interpretation was so clear, we would need only one justice on the Supreme Court, and one judge on each appellate court. Then again, perhaps we wouldn’t need appellate courts at all if trial courts had mathematical formulas in which to decide every case “correctly.”
Just a few examples illustrate my point. Where does the language of the First Amendment limit someone from shouting fire in a crowded theater? Where does the Second Amendment allow the ban of all convicted felons, which includes nonviolent offenders, from possessing a firearm to defend himself? Where the Fourth Amendment does mention expectation of privacy concerning the issuance of search warrants, a standard we accept today, it was for a much longer period of time based only on physical trespass.
The president under our Constitution gets to nominate all federal judges with the advice and consent of the Senate. It’s become a messy process. Both parties are carrying it to new extremes, although I would argue that Senate Majority Leader Mitch McConnell has brought it to new heights. Either way, this is not good for America. We can’t have a country that is divided over trust in our courts just because judges are appointed by one party or the other.
I, like every American, differ with any number of decisions emanating from the courts at all levels, especially the Supreme Court. There are plenty of examples to choose from. But overriding my differences is that social contract, that we as Americans will fall in line and obey the law in order to live in peace with our neighbor. The processes to overturn decisions we disagree with, to include legislation or constitutional amendments, is no doubt difficult. But it has been done, and that it has been done for more than two centuries is proof that our system works.
Dissent is as American as apple pie, and disagreeing with judicial decisions is perfectly legitimate. Personal attacks on judges because of their political, ethnic, religious or other affiliations, without evidence of intentional bias to ignore the law, is not legitimate. The Constitution will become a relic of better days that have come and gone if we only support it and our government when it is aligned with our views.