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The real test of an independent judiciary is yet to come

photo of supreme court chief justice john roberts and president donald trump
REUTERS/Jonathan Ernst
Chief Justice Roberts had his moment to stand up for judicial independence during the Kavanaugh fiasco, and he failed to do so.

On Nov. 21, Supreme Court Chief Justice John Roberts issued a rebuke to President Donald Trump after the president attacked a federal judge as an “Obama judge.” The chief justice affirmed, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”

Neil Kraus

But let’s travel back in time to Oct. 8 of this year. On that date, the chief justice and the rest of the Supreme Court sat in the front row as Trump led a ceremonial swearing-in for newly minted Justice Brett Kavanaugh at the White House. The president, who had attended Kavanaugh’s actual swearing-in ceremony at the Supreme Court, was flanked by outgoing Justice Anthony Kennedy and Kavanaugh and his family as he called the event a “momentous occasion.” He then apologized to the new justice “on behalf of our nation” for the “terrible pain and suffering” that he and his family were “forced to endure.” The president, who lies so frequently that the press cannot keep up, continued by saying that Kavanaugh had suffered through a “campaign of personal and political destruction based on lies and deception,” while also adding, falsely, that Kavanaugh, “under historic scrutiny” was “proven innocent.” Trump then thanked 14 individual Republican senators by name, and zero Democrats, his comments frequently interrupted by applause from all the supporters in the room.

Many thanks

Then it was Kavanaugh’s turn to speak. Kavanaugh said he was “grateful” for the president’s “steadfast, unwavering support,” and thanked Trump “for everything.” And with a straight face, Kavanaugh proceeded to read a speech about how the Supreme Court is an “institution of law. It is not a partisan or political institution.” It is a “team of nine.” After praising Justice Kennedy at some length, he then thanked several Republican senators as well as Sen. Joe Manchin from West Virginia (the only Democrat who voted for Kavanaugh), Vice President Mike Pence and then-White House Counsel Don McGahn, whom he called “a warrior for fairness.” Kavanaugh also thanked all the “outstanding people at the White House, Justice Department, and the Senate who worked day and night on this nomination.” At that point, Kavanaugh recycled much of his bizarre performance in front of the Senate Judiciary Committee, by reciting the large number of women who have worked for him, and talked yet again about the importance of friendship.

After this, Kavanaugh went on to affirm that his goal was to be a “great justice for all Americans and for all of America.” He said he was not appointed to “serve one party or one interest, but to serve one nation.” His goal was to be an “independent and impartial justice, devoted to equal justice under law.” Kavanaugh said he would have an “open mind.” He even resurrected Roberts’ “umpire” metaphor, and recited the usual talking points about how a good judge should be “independent” and “interpret the law, not make the law.” In closing, Kavanaugh said he would always “strive to preserve the Constitution of the United States, and the American rule of law.”

An incoming Supreme Court justice is the headliner at a made-for-TV Republican Party event at a Republican White House after the most acrimonious, divisive, partisan Supreme Court confirmation battle in history. But rest assured, he’ll strive to be fair to everybody. Up is down, and black is white. It’s Trump’s America now. And we’re all just along for the ride.

Overt politicization

Like Bush v. Gore in 2000, the event at the White House was another giant step in the overt politicization of the Supreme Court.  Except this time, no one was hiding behind any legal reasoning. Politics was front and center. If either Roberts or Kavanaugh cared at all about the court’s independence and legitimacy, they should never have participated in such an event.

Probably the most troubling aspect of the Trump presidency is the fact that he is eroding the norms of our democracy before our very eyes. And as the media dutifully report every insane and dishonest presidential utterance, many of our leaders are actively participating in this downgrading of democratic institutions, including those in attendance at the Kavannaugh party at the White House. Or perhaps many simply don’t care very much about our democratic norms in the first place, like, say, Newt Gingrich.

Before the election, Gingrich let the cat out of the bag in an interview when asked a question about what would happen if Democrats won control of Congress and subpoenaed Trump’s tax returns. Gingrich replied that if that scenario were to happen, then “… we’ll see whether or not the Kavanaugh fight was worth it.”  How revealing. Given Senate Majority Leader Mitch McConnell’s nearly 10-month refusal to have the Senate even consider President Obama’s nomination of Merrick Garland after Justice Antonin Scalia’s death, perhaps Gingrich just said aloud the Republican Party’s general attitude about American constitutional democracy.

Chief Justice Roberts had his moment to stand up for judicial independence during the Kavanaugh fiasco, and he failed to do so. However, both he and Kavanaugh should get another chance to take a stand for the rule of law as the Supreme Court will almost certainly be asked to decide the fate of this presidency in one way or another. While not as brazen as asking for James Comey’s loyalty during a private dinner at the White House, the president was quite clearly trying to buy Kavanaugh’s vote at the ceremonial swearing-in/Republican pep rally. Unfortunately for the rule of law, Kavanaugh’s enthusiastic participation in the event sent the clear signal that was willing to entertain the president’s offer. Time will tell just how important an independent judiciary is to both Kavannaugh and Roberts.

Neil Kraus is a professor and chair of the Political Science Department at the University of Wisconsin, River Falls.  He is the author of two books, including, most recently, “Majoritarian Cities: Policy Making and Inequality in Urban Politics,” and is currently writing a book about economic inequality and education policy. 

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Comments (4)

  1. Submitted by Neal Rovick on 11/29/2018 - 10:49 am.

    The nakedly GOP political operative natures of Kavenaugh and Whittaker show the tilting of the processes of justice in this country. Their clear contempt for the processes that they participate and oversee make it clear that they are not conservatives but servants of a peculiar form of anti-establishment politics of power.

  2. Submitted by Curtis Senker on 11/29/2018 - 11:58 am.

    As he observes the decline of clean advise and consent hearings, I’m sure the author joins me in lamenting the decision by Senate Democrats to create a new verb in 1987.

    “Borking” judicial candidates has taken a path I doubt even they could have foreseen. And we haven’t seen the worst yet. Just wait until Trump picks a replacement for RGB in the next couple years…yikes.

  3. Submitted by Connie Sullivan on 11/29/2018 - 03:16 pm.

    This article asserts that “Chief Justice Roberts had his moment to stand up for judicial independence during the Kavanaugh fiasco, and he failed to do so. However, both he and Kavanaugh should get another chance to take a stand for the rule of law as the Supreme Court will almost certainly be asked to decide the fate of this presidency in one way or another.”

    I fail to see where, in the Kavanaugh hearing process, there was a place for the Chief Justice to intervene, one way or the other. The game didn’t include him or the Court, just Trump and the GOP Senate majority.

    It remains to be seen whether Justice Roberts’s fears about Trump’s lack of respect for the rule of law and the Constitution come true, when Trump’s offenses come before the new conservative-majority Supreme Court. As they will. I think Roberts knows that Kavanaugh has already stated in writing his views on in-term investigations of a president (they are never to be permitted) and the limitless extent of presidential authority.

    All we citizens can hope and pray for is that Roberts himself begins to hold the line against Trump’s offenses to our democracy, voting with a 5-4 majority against Trump in this or that case. What he did last week was aspirational, pure textbook claims to our courts’ ostensible neutrality in justice, but in response to a wild, ignorant, and self-important President Trump who is certain that Kavanaugh, at least, and Gorsuch, are very, very much “Trump justices.”

    We have to keep in mind: Mitch McConnell has been pushing through hundreds of federal judges, not just SCOTUS justices, in the months of Trunp’s presidency. I don’t know who named McConnell God, but he is changing the ideological framework for the entire federal bench for generations.

    Trump, of course, now sees Roberts as an enemy of his, for contradicting Trump! Wonderful for all the rest of us! The more who actively see through the president, the healthier for the country, especially if that includes Supremes.

    • Submitted by Bob Barnes on 11/29/2018 - 03:45 pm.

      Innocent until proven guilty is our standard. Yet you appear to be convicting Trump before anything has come out. You wrongly assume he has broken any laws. So far, nothing has been found on Trump doing anything wrong.

      Presidents get to nominate judges for open seats. Trump is simply filling all the vacancies in the judiciary. That’s a good thing so cases can be heard in a timely fashion at all levels.

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