Consider the following grim thought: Republicans had to expend all their political capital and “go nuclear” just to possibly restore the Supreme Court to the Obergefell/Hellerstedt/affirmative action balance that Scalia himself believed to be insufferable. Oh, and all the appellate courts except for the 8th and 5th circuits are irremediably broken. Isn’t it time we finally solved the underlying constitutional crisis of judicial tyranny?
Conservatives should be concerned that since Republicans got everything they wanted — successfully blocking Garland and using the nuclear option to confirm a still unknown quantity in Gorsuch — they will have nothing to complain about when the inevitable onslaught of insane decisions emanate from the lower courts and from Justice Anthony Kennedy. Republicans have only legitimized the specter of the courts as the final arbiter of our society by so frantically trying to fill the seat and will then still lose on the critical cases anyway. Democrats and the media will say, “look, you guys got what you wanted, there is no reason to complain about the courts.” They are already referring to the Gorsuch confirmation as “restoring the conservative balance” on the court.
The lower courts are worse than ever
Here are a couple of recent observations from Obama judges that demonstrates how liberals on the federal bench will now use any means to justify their social justice ends:
1. War on local law enforcement:
Not only are the courts demanding Trump follow Obama’s immigration policies, they are coercing the Department of Justice to continue the previous administration’s policies of intimidating local police departments. The Obama administration opened 25 investigations into law enforcement agencies nationwide, resulting in 14 consent decrees whereby local police departments agreed to submit to a public hearing before a judge on how to reform their departments. This is all part of the Left’s soft-on-crime policies that have resulted in an unprecedented turn-back of the two-decade-long drop in crime. Attorney General Jeff Sessions asked a federal court in Baltimore to delay such action, given that the entirety of these proceedings was initiated by the DOJ, which he now controls and wants to reverse course. Yet, Judge James Bredar, a liberal former public defender appointed by Obama, forced DOJ to go along with the previous policies, an unprecedented move given the change in leadership and that the entire arrangement was driven by the DOJ. As a lifelong resident of the greater Baltimore area, I can tell you crime has never been worse because the police are now hamstrung and the criminals know it.
2. Judicial fascism and open borders:
Last week, federal magistrate judge James O’Hara ordered Kansas Secretary of State Kris Kobach to submit to the court a private discussion document he used in a job interview with President Trump for a potential Cabinet position. In a display of judicial fascism, the court wants to see all information about Kobach’s private views of the motor-voter law (National Voter Registration Act of 1993) in an ongoing trial against the state’s law requiring proof of citizenship to vote. As I explained last year, Kansas, among many other states, was stopped by the judicial tyrants from protecting their sovereignty and franchise from non-citizens voting. Now, at the behest of the ACLU, Kobach is being ordered to turn over any private documents showing his support for amending the motor-voter laws. Thus, not only are courts bastardizing immigration and voting statutes, but when conservatives try to advocate the revising of these statutes in order to clarify the proper interpretation, courts are now using it as evidence against them. Clearly, liberal judges are engaging in civil disobedience against political views they don’t like and are willing to justify any means — from rules of standing and evidence to overturning statutes and precedent — to achieve their political goals.
3. No freedom of speech for Trump:
U.S. District Judge David Hale allowed a case to proceed in which a plaintiff is suing Trump for inducing violence against her. The president’s crime? When protesters were disrupting a speech he delivered in Louisville during the campaign, he ordered security guards “get ‘em out of here.” This is a chilling example of criminalizing politics and freedom of speech. It’s hard to imagine anyone else would have been subjected to such a lawsuit, much like the courts made an exemption for Trump when they nullified his lawful immigration order based on their view of his political beliefs.
These ain’t your grandfather’s judicial activists
In my book, Stolen Sovereignty, I warned that the Obama-era of judges “ain’t your grandfather’s judicial activists.” They are judicial fascists. No amount of good judges Trump may or may not nominate could counteract such damage because the capacity of a good judge to do good is nowhere near the capacity of a bad judges to promote social transformation, destroy our security, and erase our borders. The culmination of decades’ worth of violence to our constitutional system of governance has now reached a feverish pitch and is downright stealing our sovereignty, especially as it relates to marriage, religious liberty, criminal justice, election law, and immigration.
We must step up our game and move beyond existing tactics to “fix” the courts. Last month, I showed how Trump’s ability to remake the lower courts is very limited anyway. Also, many commentators forget that liberals have already taken over the most important circuit for the foreseeable future. Liberals have an insurmountable majority on the U.S. Court of Appeals for the D.C. Circuit and an 11-0 majority among active judges on the D.C. District Court. This is the circuit that oversees all the political/constitutional issues emanating from regulatory fights.
What should Trump do with the courts?
- During the swearing-in ceremony of Justice Neil Gorsuch, President Trump said he believes judges should “serve under our laws, not over them.” Well, that ship has long sailed. It’s time for the president to demand that Congress begin working with him on judicial reform to ensure that courts can indeed only operate under the laws and not serve over the other branches of government and the Constitution itself.
- Attorney General Sessions should begin writing memos on critical policy issues demonstrating how they are following the Constitution and statute and how the courts are violating the law. As a separate branch of government, the judiciary does not have the final say over critical policies. Congress must also back them up using the power of the purse.
- Finally, now that Senate Republicans have gone nuclear, they as may as well go all the way. Even with the demise of the judicial filibuster, Democrats can easily stop most good lower court judges if Judiciary Committee Chairman Chuck Grassley, R-Iowa, continues the tradition of allowing home state senators to “blue slip” nominees from their respective states. Failure to do so will ensure that it is impossible to nominate a true originalist from any state that doesn’t have two GOP senators. As I’ve noted before, tradition — and to a certain extent statute — dictates that vacancies be filled by nominees from the same state as the departing judge.
Either we are a nation of laws or we are a judicial oligarchy. The time for ignoring this festering problem is over.
Editor’s note: This article has been updated to correct a typographical error in the first paragraph.
Author: Daniel Horowitz
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.