Linda Greenhouse took to the New York Times to ask whether newspapers should name the President who appointed a federal judge to the bench when reporting on a decision. This trend (“the 2-1 decision was written by judges appointed by Barack Obama and Joe Biden, the dissent by a Trump nominee”) has grown in journalism and been criticized by some.
Greenhouse’s own view has evolved: back in the day when the federal judiciary was reliably the liberals’ last resort, she opposed it. Now, however, “when only the federal courts stand between democracy and autocracy, it provides essential reassurance that the rule of law is not a partisan project.”
Let me file a concurring opinion. I agree — regrettably — with Greenhouse’s judgment about publishing who appointed a judge, but not for the reasons she cites.
She justifies her change of opinion by appealing to a one-sided view of “civics.” Back when the courts were reliable bastions for the Left’s preferred policy outcomes (abortion-on-demand, a Berlin Wall of church/state separation, expansive deference to federal bureaucrats) that was “civics.” Today, with reversal of Roe, recognition the First Amendment protects freedom of, not from religion, and narrowed deference to bureaucratic legislating, it’s “politics.” Heads I win, tails you lose.
Perhaps we can admit that the courts have always been at least to some degree political. Some attribute to Will Rogers the quip “a judge is a lawyer who knew a President.” And that adage reminds us of the very common timber from which judges are made.
I’ll admit a certain dubiousness about invoking “civics.” It’s an equivocal term. There’s the civics of high school, where everything neatly functions perfectly according to the enlightened, nonpartisan wisdom of the Founding Fathers. And there’s the civics by which Washington really works.
I’ve criticized the former because it gives people an illusory understanding of the ways of Washington, with disillusionment stemming from the clash between image and reality. The Senate does not work like Mr. Smith Goes to Washington. And judges are not neutral solons raised above and immune to the fray of politics, current events, and legal philosophies, Olympians in the black robes of a secular clerisy divining the essence of the law. They are not the heirs of a secular legal infallibility, handing down ex cathedra pronouncements. If that was true, there wouldn’t be 5-4 or 6-3 splits in Supreme Court decisions.
I spent the past year closely observing the Senate. The former Democrat majority transacted very little legislative business but put the confirmation process for Biden judicial radicals into overdrive, intent on showing he could outdo Trump 45 in single-term judicial appointments. To pretend, then, that politics does not affect judges is something believed only by the naïve and maybe on off days by Chief Justice John Roberts when he talks about “balls and strikes.”
Yes, it would be good if we could believe and practice that, but that day — for weal or woe — has passed in our judicial history. I’d even argue that responsibility in large measure lies with Joe Biden and fellow Democrats who politicized the Supreme Court confirmation process because of their absolute fealty to abortion-on-demand, inventing a new verb — “borking” — to discuss the politicized defeat of a highly qualified judicial choice. Given where we have come, the least we should be able to do, especially when single judges decide to impose their views of the law on the country as a whole, is acknowledge their presidential paternity.
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