This retired judge just got out of the hospital and is in no condition to do a lick of research and therefore should not be practicing punditry.
I have in past writings made my admiration for Ruth Bader Ginsburg abundantly clear and the same could be said about my contempt for Moscow Mitch McConnell. Every excuse to keep my mouth shut beckons me to preserve what reputation I have in case I do not recover.
Instead, I shall eliminate one possible epitaph: “Here lies retired Judge Steve Russell, perished from an overdose of common sense.”
I am of the generation that added to the English language the verb, “to Bork.” It’s a measure of how quickly we move along in the world and how we describe it that I consider it necessary to briefly explain how an obscure legal scholar named Robert Bork got to be a cause when President Ronald Reagan nominated him in 1987 to vacant seat on the U.S. Supreme Court.
There is an industrial strength socialization process that usually grinds the rough edges off judges before they have a chance to do much damage, a process that works on dinky little state court judges educated in public law schools like yours truly as well as federal judges born with enough money for private law schools and enough political stick to come out of the judicial chute with a lifetime appointment.
President Trump claims that even without a second term he will have appointed about half of the federal judiciary. The socialization process for judges leaves us believing that we are custodians of a traditional Anglo-American jurisprudence that contains self-correcting mechanisms that continually make that which is old new. If that is true, the self-correct will be working overtime.
Mr. Trump has already had the frustrating experience of being enjoined from some of his worst excesses by individuals who, from his point of view, quickly forgot they were appointed to be “Trump judges.” If history and tradition do not sway the loyalty of Trump appointees, their potential for life tenure may be cut short when they realize how often the judge is the lowest paid lawyer in the courtroom.
Robert Bork was one of those who started high on the career ladder, on the D.C. Circuit Court of Appeals. By the time his nomination to the SCOTUS came up, he had already shed a number of his more absurd positions. One of those formerly held ideas was that the First Amendment protects only overtly political speech. After all, we have the First Amendment to protect a free market of political ideas, right? What would the Framers have thought of nude dancing in a production of “Hair?”
How does performance or poetry protect political discussion? It’s hard for me to ask that question without snickering. Take, for example:
Hearing that poem by Langston Hughes might give the impression that the United States has a race problem, or did approximately a century ago. No need for discussion now.
Bork had the good sense to dismount these kinds of horses before they were shot from beneath him, but he still went to confirmation with positions he no longer held hung around his neck.
His other claim to fame was his role as Solicitor General in the Saturday Night Massacre, October 20, 1973. President Richard Nixon ordered Attorney General Eliot Richardson to fire Watergate Special Prosecutor Archibald Cox. Richardson resigned rather than comply.
Nixon gave the same order to Deputy Attorney General William Ruckelshaus, who also resigned.
Solicitor General Robert Bork was third in command in the Justice Department, and he did the president’s bidding.
Between this apparent lapse of moral fiber and his old writings, it becomes understandable that his confirmation process turned into political warfare. My dear friend John Henry Faulk sent a note from his hospital bed in Houston saying,
I’ve named my cancer “Bork,” because it’s got to be beat.
Bork was not confirmed to the SCOTUS, but the confirmation process has never been the same.
There was a time when the POTUS would not consider a primarily political appointment to the SCOTUS. The Senate would want to be certain that the appointee had a reputation within the Bar for honesty and his (always “his”) publications had to fit within mainstream legal scholarship. Subject to those requirements, the president was entitled to pick his man.
Bork’s defeat was perhaps the most significant change in the process since Felix Frankfurter’s appointment by FDR and confirmation after a battle that saw Frankfurter become the first appointee to testify on his own behalf. He was a founder of the ACLU who had advocated against the Palmer Raids and criticized the trial of Sacco and Vanzetti as unfair, which most people now understand it was whether or not Sacco and Vanzetti were guilty.
Felix Frankfurter was a leftist. Upon confirmation, he became a judge — to the disappointment of many who worked to see him confirmed.
Donald Trump has been a frequent critic of Chief Justice John Roberts, who represents the “Frankfurter problem” from the right.
A judge does not serve the executive who put him or her on the bench. A judge serves the law, or so we have understood in the past.
We are about to fall into a contentious process where most people will be concerned about the continued viability of Roe v. Wade. From where I sit, the continued viability of Brown v. Board of Education is on the line. This kind of attack on existing case law could not have happened before the process got Borked.
My limited imagination is finding it hard to picture a player in the justice system more committed to the law as law than Ruth Bader Ginsburg (or, as I tend to think of her, Superwoman). I also find it hard to picture a player in the justice system less committed to the law as law than Donald John Trump (how I think of his depredations on legal norms is unfit for a family magazine).
I suppose one way the damage could be minimized would be if Mr. Trump offers an appointee as outside the mainstream of our times as Robert Bork was in his. That might scare away enough Republicans to obstruct the circus to the end of the lame duck.
While an outcome that depends on the stupidity of Mr. Trump is never impossible, getting past the lame duck does not solve the problem.
The Framers left us a government divided into three branches, each with a power to check the others.
The executive holds the power of the police and the military, power Mr. Trump has shown himself ready to use against all comers, with the possible exception of Vlad Putin. In Mr. Trump, we have the combination of ignorance and hunger for power that drives autocrats and we have a POTUS who has met few autocrats he did not like. He is the kind of man for whom checks and balances were designed.
The legislature holds the power of the purse. Like the power to declare war, it is seldom used to policy ends. We have taken to electing herds of cowards who fear not a yea or nay vote, but any voting at all on a subject of great public controversy. Cowardice has put the legislative branch to sleep at the switch.
The Third Branch holds neither guns nor butter but only the persuasive power of a well-reasoned opinion, grounded in logic applied to our history and traditions. Mr. Trump’s quest for “Trump judges” carries the purpose of neutering the judicial branch.
To the extent there is hope that Mr. Trump will continue to have elections and obey the results, it is the result of an independent judiciary, a free press, and civilian control of the military.
We have at times been asked to accept “Trump generals” and“Trump judges,” as we are reminded that the press is “the enemy of the people.”
During his first campaign, Mr. Trump kept reminding us that only he could fix it. I presume that we are the ones who broke it. If it was not broken then, it is certainly broken now, and autocracy is one path to law and order. Or, at least, the latter.
The passing of Justice Ruth Bader Ginsburg leaves us even more short of law and it appears law will suffer more wounds in the attempt to replace her.
Order, we will have. Is that all we want?