Just how political is the judicial branch of the United States government? This is a question with many facets and one that has been argued over since the founding of the nation. Both left and right have a history of praising the courts when a decision goes in their favor and deriding judges as partisan or activist when those judges deliver opinions unfavorable to one side or the other. From a conservative perspective, the 9th Circuit Court of Appeals has a history of consistently ruling along political lines, in favor of the left. How true is this, though?
In response to President Trump’s latest attack on the 9th Circuit – after a judge for the Northern District of California issued a restraining order, effectively preventing the president’s change to asylum rules – Chief Justice Roberts issued a rare, public statement that rejects the notion of politically partisan judges. Refuting the belief, held by the president and probably most Americans, that judicial appointees tend to rule in a manner that reflects the political ideology of the president who appointed them, Roberts told the Associated Press: “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
Is President Donald Trump justified in his continued assault upon the 9th Circuit, and was Supreme Court Chief Justice John Roberts right to weigh in against the president?
Real Or Imagined Judicial Bias?
The United States is divided into 94 judicial districts, organized into 11 regional ”circuits,” and each of these circuits has an appellate – or appeals – court. As an aside, there is a 12th circuit which has nationwide jurisdiction. The 9th Circuit is by far the largest; its jurisdiction spans the entire west coast, Hawaii, and Alaska, as well as Arizona, Nevada, Idaho, and Montana. It comprises 15 district courts and the appeals court. Almost 20% of the population lives within the jurisdiction of the 9th Circuit.
Is this judicial circuit really as partisan as many insist? Certainly, it is worth considering the overwhelmingly left-leaning nature of most districts covered by the 9th Circuit. These judges are not elected, though; all of them are appointees. In total, there are 112 judgeships plus 29 appeals court judgeships, not counting current vacancies, of which there are currently six for the appeals court. The president has five pending nominees. Of the 24 active appellate court judges, 17 were appointed by Democratic presidents and seven by Republican presidents. Chief Judge Sydney Thomas was appointed in 1996 by President Bill Clinton.
While the 9th Circuit has occasionally surprised conservatives, it is certainly true that its decisions, on matters of national significance, almost always favor the political left. Many of those decisions have been subsequently overturned by the Supreme Court. Stephen Reinhardt, who died from a heart attack in May 2018, had a reputation as one of the most “liberal” and politically partisan judges on the 9th Circuit. Some of his most high-profile decisions included challenging a ban on late-term abortions, striking down California’s ban on same-sex marriage, ruling that the 2nd Amendment does not protect the individual right to bear arms, and joining a ruling by Judge Alfred Goodwin that the Pledge of Allegiance was unconstitutional for its inclusion of the words “under God.” Goodwin was appointed by Nixon, though, proving that judges do not always pick a side based on the politics of the president who appointed them.
Chief Justice Roberts’ Selective Outrage
When one takes into account the fact that the 9th Circuit Court of Appeals was overruled by the Supreme Court in almost 90% of its decisions between 2010 and 2015, according to the U.S. Supreme Court blog, one cannot help but suspect that the majority of judges on this circuit are influenced by more than a strictly objective interpretation of the Constitution and current statutes. If these judges are making decisions based strictly upon what the laws and the Constitution allow, without regard for ideological considerations, how can they be wrong in so many cases? Either they are incompetent jurists or their decisions are colored by factors extraneous to legal and constitutional conditions.
Chief Justice Roberts is ignoring the entire turbulent history of the judicial branch by claiming that judges do not allow political thought to color their opinions. One of his own associate justices, Ruth Bader Ginsburg, has publicly expressed her political views. She has been an outspoken critic of Trump, even bemoaning the idea that he had “gotten away with” not releasing his tax returns. Since there is no law that compels a president or presidential candidate to turn over their personal tax records, this is a prime example of a judge – a Supreme Court justice, no less – ignoring legal fact to opine on political affairs. Perhaps it is not surprising that Roberts fails to notice the politicization of courts when he does not recognize partisanship in his own chamber.
“I’ll tell you what,” the president told the press after the 9th Circuit decision on his asylum order, “it’s not going to happen like this anymore.” American presidents have long struggled with the political balance of the judicial branch. Trump’s ongoing war of words with Roberts and his ire at the decisions of federal judges is nothing new. Like so many previous presidents, Trump will attempt to bend the judicial branch in favor of his agenda by appointing federal judges he believes will favor his way of doing things – and why shouldn’t he? In the late 1970s, Jimmy Carter and his Democratic Congress expanded the 9th Circuit and loaded it with left-leaning judges. Before Trump leaves the White House, he will likely have redressed that balance, one way or another.
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