On judges, it looks like Trump was right

Marshall H. Tanick, BridgeTower Media Newswires

“How dreadful it is when the right judge judges wrong.”

Sophocles, Antigone 
(Circa 442 B. C.)

One of the many facets of the draft opinion of the Supreme Court eliminating the constitutional right to an abortion is the evisceration of the notion that judges are impartial adjudicators.

The projected ruling in Dobbs v. Jackson Women’s Health Organization, No. 19-1392, gives lie to the myth, perpetuated by some like Chief Justice John Roberts in his confirmation hearing 15-plus years ago. His analogy that a judge is like a robotic “umpire calling balls and strikes,” overlooks the reality that they set the strike zones, which differ based upon the ideology of the particular jurist.

Former President Donald Trump was widely castigated by many, including the chief justice no less, when he dismissively scorned some federal judicial rulings against him and his administration as being issued by “Obama judges.” He should know, because in his single four-year term he selected more than two-thirds of the number of federal judicial officers as each of his three immediate two-term predecessors and nearly as many as President Barack Obama managed to place on the federal benches in his eight years in office.

The 45th president’s implication that judges tailor their decisions in conformance with the views or ideology of those who appointed them was met with strident pushback from many sources at low and elevated levels. One of the latter was the chief justice, an appointee of President George W. Bush, who took the occasion of Thanksgiving eve in 2018 to issue a rare public statement: “We do not have Obama judges, or Trump judges, or Bush judges, or Clinton judges” and proceeded to praise the nation’s “independent judiciary … we should all be thankful for.” It echoed but expanded upon similar observations Roberts made six weeks earlier at a presentation at the University of Minnesota Law School fretting that attacks on judges impugned the impartiality and, yes, integrity of the judiciary. The chief laid on heaping helpings of self-praise in telling a crowd of several thousand on campus: “We don’t serve one party or one interest; we serve one nation.”

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Remarks v. reality

While his platitudes were diplomatic, the remarks mask a reality. In the contretemps, the ex-president may have been more correct than many gave him credit.

Judges often do slant their rulings on high-profile, controversial issues with political overtones in accordance with the outlook of those who appointed them, a matter reflected in several academic studies.

Although this does not happen all of the time, it’s sufficiently prevalent, which is why at the Supreme Court level, for example, there are so many narrowly divided 5-4 or 6-3 rulings, although the number of unanimous ones or those with a lone dissent typically comprise from half to, as during last term, to nearly two-thirds of the tribunal’s rulings. But the splits among the justices and in lower court rulings as well reflect that the law is viewed quite differently through the ideological lens of individual jurists.

A group of umpires, say nine of them, probably wouldn’t come up with a 5-4 or 6-3 difference whether a particular pitch is a strike or ball or a runner safe or out on the basepaths.

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Mask mandate

In addition to the pending Dobbs abortion rights case, this verity was illustrated in a pair of recent federal proceedings in Florida. One is sweeping ruling in mid-April by federal Judge Kathryn Kimball Mizelle in Tampa invalidating the Biden administration’s transportation COVID mask mandate in Health Freedom Defense Fund v. Biden, Case No. 8-21- CV-01693 KKM/AEP (M. D. Fla. April 18, 2022). As widely reported, the jurist who presided over the overturning of the directive is a dyed-in-the wool Trumpist, belatedly confirmed by the Senate in his lame duck period after the election he lost but says he won.

She’s an adherent of ultra-conservative Supreme Court Justice Clarence Thomas, for whom she was a law clerk, and later described as “the greatest living American” for his cropped view of constitutional rights. She also was deemed unqualified by the American Bar Association (like several of the former president’s nominees), and with barely any courtroom experience (one trial as an “second chair” assistant counsel after law school), the chief qualification of the 35-year-old Judge Mizelle, the most youthful and least experienced federal judge seemed to be that she would do the bidding of the ultra-conservative sector of the legal profession.

And she has delivered.

Her 59-page opus negating the Biden administration’s mask rules has the aura of scholarship. But in actuality it boils down to mimicry of the restrictive rationales of recent Supreme Court rulings striking down the mandatory vaccination protocols for large companies and the Clean Water Act regulations promulgated by the Environment Protection Agency (EPA). National Federation of Independent Business v. Dept. of Labor, OSHA, 142 S.Ct. 661 (2022) (vaccine mandate); Louisiana v. American Rivers, 142 S.Ct. 1347 (2022) (Mem.) (Clean Water regulations).

Judge Mizelle’s edict is currently on appeal by the Biden administration to the 11th U.S. Circuit Court of Appeals, where it is likely to face an uphill fight since that tribunal is considered one of the most conservative of the 13 federal appellate circuits, loaded with a majority of Trump appointees. That tribunal earlier this month in League of Women Voters of Florida v. Florida Secretary of State, No. 22-11133 (11th Cir. May 6, 2022) overturned a lower court ruling that had invalidated a new restrictive Florida election law that a trial judge in a 288-page opus deemed to be the product of “a horrendous history of racial discrimination in voting,” a proposition that the appellate tribunal swiftly reversed as a “problematic” departure from the presumption of legislative “good faith.” The lower court ruling was made by Judge Mark Walker, an Obama appointee; it was reversed by a three-judge panel composed of all Trump appointees, a disparity demonstrating that the “umpires” can’t seem to agree on the strike zone, let alone who’s safe or out at the ballot box.

The judge’s mask mandate ruling and the two predecessor high court cases that it emulated turned on a common theme: lack of statutory authority for the administration’s efforts to protect public health. They represent a deeply ingrained anathema to government doing anything for the public good or, in many instances, anything at all. It’s laissez-faire at its worst, and it’s not fair at all to those who will suffer because of it.

Judge Mizelle’s youth is not necessarily an obstacle to the quality of her work, but her inexperience is, as is her embedded ideological outlook.

That’s hardly unique. While not universally so, on countless occasions Trump-appointed judges have made rulings that are legally dubious but consistent with the views of their benefactor, including other matters related to COVID regulations, immigration, and the January 6 insurrection, among other matters.

To be fair, several Trump appointees were steadfast in rejecting the bogus post-election claims made by the outgoing president and his advocates. Further, the disturbing ideological pattern reflected in many of the rulings of “Trump” judges, like the facial covering case, has characterized many rulings of “Obama” and even “Clinton” judges on these topics and others. But they have not done so as consistently or blatantly as those appointed by the 45th president, nearly all of whom were approved or endorsed by the conservative Federalist Society, an organization that, like the eminent Justice Thomas, regards the law through the prism of the past, rather than the propriety of the present or prospects for the future.

The mask mandate litigants were well aware of what to expect when Tampa-based youthful Judge Mizelle was randomly chosen to hear the suit. The Biden administration unsuccessfully sought to have the case transferred to another Tampa judge who was presiding over an unrelated transportation mask case to avoid “inefficiency.” That jurist, to whom Judge Mizelle refused to convey the case, happens to be an Obama appointee.

Trump’s truism is linked to a remark by notorious attorney Roy Cohen, one of Trump’s lawyers years ago. He explained that in approaching litigation he did not care much what the law says, “just tell me who the judge is.”

His observation reflects that, at least on this issue, his protégé Trump has been right.

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Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.