Sankar Ray is a senior journalist who has worked in various news and current affairs magazines, has spawned scores of good journalists and has in-depth knowledge of global issues, especially Left politics in India and abroad
The US President Donald Trump created a systemic stir when he said that the United States Court of Appeals for the Ninth Circuit was “in chaos” and made no secret that he was upset with the circuit.
The Ninth Circuit comprises the Ninth Circuit Court of Appeals along with district and bankruptcy courts in the 15 federal judicial districts that comprise the circuit, and associated administrative units that provide various court services. His ire was because of the court upholding of a temporary halt on his travel ban issued against people from seven Muslim countries. Previously, he sent spanners at the US judiciary calling it a “broken legal system”. Trump confronts the ghost of the US tradition and history, whose last gate keeper was President Obama, albeit with a fractured conscience. Is judiciary the US President’s protracted nightmare? Or does the spectre of Obama haunt Trump at the Rose Garden?
Seeds of quasi-antagonistic hiatus between Trump and judiciary were in the DNA of the hyper-aggressive monarch of White House and the poisonous sapling was to grow awkwardly one or another day. And it happened when Trump clamped a ban on immigration from Muslim-majority nations.
Pat came a backhand smash from the federal court in its verdict on an appeal petition.
It was the US Court of Appeals for the Ninth Circuit, the only federal court at any level empowered to examine all three of the Trump immigration orders that asserted itself in a firm manner. It declared all the three legally flawed.
The mandate was a sweeping one, if not humiliating for the President, as the court smashed all the three executive orders that Trump signed since January. Imposing a permanent ban on entry into the US by some 150 million foreign nationals from seven countries, with entry possible only on a person-by-person basis when individuals are found eligible for visas… the court’s rejection was a colossal affirmation of the American Ideal that successive Presidents have been espousing, damning the White Supremacist politics of Mr D Trump. The most devastating was the three-judge panel of the Ninth Circuit Court’s 71-page ruling 16 days after holding a hearing on the third version. It specified that the order should not be allowed to operate. It was also stated that it could not put that conclusion into actual effect immediately because of the Supreme Court’s temporary order on December 4 saying that full enforcement of the restrictions could begin. The mandate was a unanimous one, from end to end, strongly worded critiquing the executive order the President signed on September 24. (Notably, this has reversed the historic stand taken by former US Chief Justice Earl Warren, that the judiciary had no role to play in the ‘political question’, asserting thereby by the Ninth Circuit Court, that indeed, it had.) But the apparent spat between the executive and judiciary is not unprecedented in USA. Nathan DB Connolly, Herbert Baxter Adams Associate Professor of History at the Johns Hopkins University, who had made impressive contributions to the study of people’s overlapping understandings of property rights and civil rights in the USA and the wider Americas, went back to the famous Marbury Vs Madison case of 1803 when the Supreme Court with Chief Justice John Marshall at the helm gave a landmark verdict in the legal battle between William Marbury and James Madison, then US Secretary of State, confirming the legal principle of judicial review – the ability of the Supreme Court to limit Congressional power by declaring legislation unconstitutional–in the new nation.
The court ruled that the new president, Thomas Jefferson, via his secretary of state, James Madison, was wrong to prevent William Marbury from taking office as the Justice of Peace for Washington County in the District of Columbia, but also ruled that the court had no jurisdiction in the case and could not force Jefferson and Madison to seat Marbury. But the Marshall court ruled that the Judiciary Act of 1789 to be an unconstitutional extension of the judiciary’s power into the realm of the executive. Connolly observed: “The only powers that the court have are those that are outlined in the Constitution, not that are outlined by Congress. So, the fact that you have a president who wants to simply make an appointment in the 11th hour is by no means beyond the reach of the court to essentially refute.” The professor thinks that some of these conflicts between the judiciary and the president have a lot to do with who’s in Congress. He went back to the times of Abraham Lincoln, especially in 1861. Even before Lincoln were Thomas Jefferson and Andrew Jackson who in 1807 and 1832 respectively had built schism with the second most important pillar of the State. Jefferson, 1807, again wins against the court relative to embargo on US goods because he has Congress behind him. So these conflicts between the White House and the courts are a part of the US history. Remember what Franklin Roosevelt did in 1912 when he failed to get presidential nomination. Teddy Roosevelt raised the question of a more populist engagement with the judiciary. He “wanted to be able to recall judges, to have popular elections for federal and state judges. And this commitment to a kind of popular sovereignty basically ran on the idea that the people should have the influence over the judiciary. And what I see now in President Trump’s efforts — through, you know, de-legitimising the judiciary, through his tweeting, through his attempt to speak directly to the American people — is, in effect, a kind of Rooseveltian move, the idea that the American people should be able to check their judges and, in some cases, be run by a very charismatic and strong president,” pointed out Connolly. Brian Balogh, Dorothy Danforth Compton Professor at the Miller Center and Professor of History at the Corcoran Department of History at the University of Virginia ,referred to criticism faced by Lincoln for suspending habeas corpus during the Civil War,although he defended backed Lincoln. In an interview to Meghna Chakrabarty in ‘Here and Now’ in mid-February, collinear with Connolly, he stated “It was a civil war and he had a very practical problem. It was very hard to tell who was on whose side, especially in border states like Maryland. So, you know, he needed to hold people — and he said under the president’s powers during wartime, he was suspending habeas corpus”. In an interview in mid-February, Balogh stated: “It was a civil war and he had a very practical problem. It was very hard to tell who was on whose side, especially in the border states like Maryland. So, you know, he needed to hold people — and he said under the president’s powers during wartime, he was suspending habeas corpus”.
Lincoln, Trump, Obama
Getting straight into Trump’s confrontation with the Ninth Circuit Court of Appeals, Balogh opined: “What’s happening now is we’re seeing that words, process and evidence actually really matter. And all through the campaign, it seemed like, well, words just didn’t matter. Who was going to respond? Well, the courts are responding. And once something gets to the courts, what Donald Trump has actually said in the past turns out to be a very important part of that Ninth Circuit decision. “The process of how that executive order has been implemented really matters — the fact that Trump did not consult with the key agencies ahead of time. And if you don’t want to make it public, we will consider that in camera, behind closed doors. But you need evidence. And, so I think we’re facing the first time that Donald Trump’s words are coming back to haunt him because the government, at least up ‘till now, has operated with certain processes and based on certain fact-based evidence. And they’re all coming together right now.” Differences with judiciary and the resolve to creative solution to confrontation were in a way attempted by Trump’s predecessor in August 2016 when he graciously told his Supreme Court nominee in the Rose Garden that choice of judges would be based on meritocracy. The impression in vogue was that many judges were tilted towards the brass of Republicans. A determined Obama, in another meeting with progressive legal activists in the Roosevelt Room, rhapsodised about his choice to cap his judicial legacy. One instance of leaning on sheer merits was the choice of Merrick Garland as judge, possessing two Harvard degrees, having served 18 years on America’s second-highest court ‘a mensch who tutored inner-city kids and had just wept while discussing his family’. Obama actually did not at all cross swords with the judiciary. Instead, he waged a non-antagonistic confrontation. Small wonder, the Republicans were hell bent on blocking anyone Obama picked.
But Obama was equally resilient and defended, for instance, the mild-mannered 63-year-old Garland who is no black, in a dignified manner: “This is the right man at the right moment.” He knew Garland’s chances of slipping past the GOP blockade were slim, but he figured they were better than anyone else’s. The legal Left broadly backed the President. Garland was a symptomatic manifestation of Obama’s desire to insulate judiciary from corporate and racist bias, thought the first African-American head of state. By mid-2016, Obama had already altered the character of the US judiciary. He created a record recruitment of 329 judges in higher courts with the objective of better management of lower courts that hear over 400,000 federal cases every year. The Senate Republicans expectedly made the unprecedented move by denying Garland a hearing. A West European opinion piece writer aptly stated, “Obama is a political pragmatist and a public advocate of judicial restraint, so he hasn’t nominated the dream judges of the Left. But he certainly hasn’t appointed the kind of Federalist Society conservatives that George W Bush favoured, so liberal activists—who have indeed put aside their misgivings and supported Garland—have mostly approved of his impact on the justice system.” Obama appointees intrepidly have made their mark by their libertarian stand in cases involving issues like gay marriage and transgender bathroom choices, as well as cases involving the health reforms and carbon regulations. And one can’t ignore that 43 per cent of Obama’s judges have been women, shattering the old record of 29 per cent under Bill Clinton. Thirty six per cent have been non-white, surpassing Clinton’s record of 24 per cent. Obama’s appointees include 11 openly gay judges from just one (under Clinton).
Trump, who has begun to feel the heat of Obama’s judicare thrust from the Ninth Circle, will leave no nerve unstrained to reverse Obama’s ‘revolutionised’ structure of the US judiciary. Within nine months of his presidency he surpassed Obama in confirmation of judges, almost all non- appointees of Obama. As many as 61 people were nominated to federal judgeships in those nine months, according to the website of the Administrative Office of the US Courts website.
Furthermore, over 100 more seats are open and awaiting a nominee. Trump in his characteristically bumptious manner claimed confirmation of Supreme Court Justice Neil Gorsuch as one of his signature achievements. Gorsuch is unabashedly an ultra-rightist, having already established himself as among the most conservative members of the top US court, never shy about expressing his views, sometimes in idiosyncratic ways. Gorsuch’s record so far suggests “he is going to be a reliably conservative vote,” said Carolyn Shapiro, a law professor at Chicago-Kent College of Law.
Trump, defending his obstinacy through laboured arguments, stated: “Something that people aren’t talking about is how many judges we’ve had approved, whether it be the court of appeals, circuit judges, whether it be district judges.” He pulled up the Democrats, accusing them of holding them up beyond anything. “Beyond comprehension, they’re holding them up,” Trump said. Earlier in the day, at a Cabinet meeting, Trump said his judicial nominees are “some of the most qualified people ever, and they’re waiting forever on line”. A top Senate Democrat shot back promptly that ‘claims that Democrats are obstructing judicial nominees are false’. Obama, political pragmatist and a public advocate of judicial restraint, didn’t nominate the dream judges of the left. He instilled a little bit of libertarianism. Trump, to the contrary, chooses to be on the footsteps of the late conservative icon Antonin Scalia, former associate justice of the US Supreme Court, a Reaganite and committed to move the federal judiciary to the right. Georg Wilhelm Friedrich Hegel famously stated, “The learner always begins by finding fault, but the scholar sees the positive merit in everything.
Well… rogues never learn!