Thursday on the RCP Podcast, Tom Bevan spoke with RCP contributor Richard Porter about a memo obtained by The Federalist, from federal judge James Boasberg to Chief Justice John Roberts and other judges, worrying that the administration could disregard rulings of federal courts, leading to a constitutional crisis: “Memo Reveals D.C. Judges Are Predisposed Against Trump Administration” “It’s a big deal, but it’s not shocking. It’s a little surprising that someone wrote it up,” Porter said. “It’s a window into the challenge the Trump administration faces in dealing with 600 district judges around the country.” “Judges are supposed to reason about the law and persuade about what the right answer is. Their power over the executive is relatively limited,” he said. “And although he’s not happy about it, Trump has been respectful-even of judges who have gone too far. So there’s no case in which Boasberg should have been talking about this. And on top of that, his fear was unfounded. It turns out he was the one acting extralegally, not Trump.” “The deeper problem, one I don’t know where it ends, starts with an ideology that’s taken hold in law schools over the last 50 years: critical legal studies,” he said. “You have people who are more self-consciously adopting political viewpoints, because that’s what they learned in law school!” “What Trump is really good at is getting people to reveal who they really are, and I think that’s what we see with Justice Ketanji Brown Jackson. Once you reject the rule of law as an ideology, and instead believe that being a judge gives you a platform to express your opinions, you’ve moved away from dispassionate judicial review,” Porter said. “Instead, the judge is saying they are the manifestation of the law. The way Fauci said, ‘I am science,’ Ketanji Brown Jackson is essentially saying, ‘I am law.’ That creates the idea of judicial supremacy-rule by judges.” “Judges are chosen on a political basis. That’s not necessarily a bad thing. The danger is what ideology they adopt once they put on the robe,” he said. I don’t think we ought to change the structure. Electing judges wouldn’t solve the problem. We need better elected officials-people who actually believe in the Constitution and the rule of law.
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