DAVID MARCUS: Democrats know 'judge shopping' is anti-Democratic and wrong
It is often said that a good baseball umpire goes all but unnoticed while a bad one becomes the center of attention and anger at the ballpark. These days, this is a saying that can apply with equal accuracy to the federal judges handling the avalanche of legal challenges against the Trump administration.
What rankles Americans, and not just supporters of President Donald Trump, is how obviously the Democrats and their allies are judge shopping for exactly the umpires who will make the calls they want, seemingly, no matter what happens on the field.
The star of the game among the judges handling Trump-aligned cases this season is James Boasberg, Chief Judge of the United States District Court for the District of Columbia, in which capacity, among other things, he ordered the administration to turn around a plane full of gang members going to El Salvador and return mid-flight.
The Trump administration declined to do so, but Boasberg did manage to delay many further deportations.
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Much like Judge Juan Marchan who presided over Trump’s hush money case in New York City, Boasberg has emerged as a liberal darling, to them, a true man of the law speaking truth to power and defending the guardrails against autocracy or fascism, or whatever.
Much like Merchan, Boasberg also has an adult daughter who works for left-wing causes, in this case a pro-illegal immigration organization called Partners in Justice, which opposes both the removal of gangbangers and the congressionally approved, the anti-illegal immigrant violence Laken Riley Act.
Put bluntly, James Boasberg could have been assembled in the laboratory of a neoliberal think tank to ensure the will of voters is subject to the approval of the ideological elite. You might elect Donald Trump president, but judges will decide what he actually does.
Let’s not kid ourselves, the litigants trying to sue the Trump administration into oblivion, or at least delay its actions indefinitely, know that Boasberg is on their team.
The problem is that this is our judicial system. It's not the desert merry-go-round under a glass dome at a Jersey diner, nobody should be able to just point and say, "I’ll take that one."
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We can be sure that Democrats know just how biased the practice of judge shopping is because anytime Trump is rebuked by a judge appointed by a Republican, who was appointed by say, President George W. Bush or Trump himself, they use it as evidence that the decision is unbiased.
If a decision has more weight and legitimacy when a judge appointed by a president’s own party signs it, then must not a decision signed by a judge appointed by the opposition party carry less?
In an ideal world, a judge's party affiliation would be irrelevant to his interpretation of the law, but we don’t live in that world, and maybe we never have. The best substitute in that case is to assign cases at random, not to stack the court with friends.
There are signs that both the judiciary and congress are beginning to take the issue of judge shopping seriously. In its 5-4 decision overruling Boasberg’s order which halted deportations of Tren de Aragua gang members, the critical element in the Supreme Court’s decision was where the case was brought.
Justice Brett Kavanaugh, in a concurring opinion, wrote, "the Court’s disagreement is not over whether the detainees receive judicial review of their transfers—all nine members of the Court agree that judicial review is available. The only question is where that judicial review should occur."
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In this case, the review must take place deep in the heart of Texas, not in the rarefied air of Washington, D.C. In other words, no more judge shopping.
Likewise, Sen. Chuck Grassley, R-Iowa, is challenging his body to reform a judiciary that, through means including judge shopping, has become thoroughly anti-democratic.
"The President of the United States shouldn’t have to ask permission from more than 600 different district judges to manage the executive branch he was elected to lead," Grassley said this month, adding, "the practice of sweeping nationwide injunctions, broad restraining orders and judicial policy making must end. It’s unconstitutional, it’s anti-democratic and it’s imprudent. If the Supreme Court won’t stop it, Congress must,"
Hear, hear.
The Democrats had a chance to defeat Donald Trump, or at least take one or the other of the houses of Congress back in November. They lost. Now they are committed to cherry-picking judges who will thwart the will not just of Trump but of the American people.
Umpires, like judges, wear black. This is so nobody can say they prefer the colors of one team to another. Our country cannot function if judicial robes turn to red and blue, and if every plaintiff can choose their preference.
No, the American people want and deserve judges who simply and fairly call balls and strikes.