It’s a good bet that somewhere in his chambers, United States Senior District Court Judge James Louis Robart has a certificate proving that he is, without question, an Article III judge. He was nominated by President George W. Bush, confirmed by the Senate by vote of 99-0, and assumed office on June 21, 2004. He took senior status on June 28, 2016.
By some accounts, he seems like a swell guy, and I’m fully prepared to accept that premise that he is a particularly decent human being. That’s great, but irrelevant. So too is the identity of the president who appointed him or the vote count in the Senate that confirmed him. If he was appointed by Millard Fillmore by a vote of 51-49, he would still be the same human being he is, and still be an Article III judge.
After making a ruling in a controversial case, he was the target of a twit by the president that characterized Judge Robart as a “so-called judge.” This was a problem. By targeting criticism at Judge Robart’s authority to rule as a judge, it undermined the authority of a judicial officer to perform his constitutional function. It made people stupider, informing them that an adverse ruling raises questions of judicial legitimacy. As William Baude explained, there are two ways to criticize a court:
One is to criticize the court’s decisions. That is, to say that the court got the law wrong, got the facts wrong, or generally didn’t rule the right way. These criticisms can have stronger and weaker forms, as Josh Blackman discusses here, but they are relatively common. After all, every government decision to appeal a federal court ruling entails saying that the court got something wrong.
If the court has authority, then the parties are legally required to follow its judgment: even if it is wrong; even if it is very wrong; even if the President does not like it. But if the court does not have authority, then perhaps it can be defied.
Criticizing a decision is, and always has been, fair game. Criticizing the authority of a judge to make decisions which, until stayed or reversed, we are bound to follow undermines the constitutional structure of our government. That is a “deadly serious issue.”
None of this, however, suggests that Judge Robart’s decision is sound. You may love it or hate it, which similarly has no bearing on whether it’s legally sound. And there is a strong argument to be made that President Trump’s Executive Order may be terrible public policy, an affront to American values, but constitutional and lawful. Or at least those parts relating to immigrants who are not legal permanent residents. It’s not that it’s legally uncontroversial, but that the awfulness of the policy is an entirely separate problem from the legality of the Order. And none of it is simple.
But that’s what makes Americans nuts. Trump was elected, at least in part, to cut through all the nuanced, thoughtful, legal issues that people felt bogged down achieving their desired goals, and so they don’t really care whether lawyers and scholars can spend countless hours debating legal doctrine and statutory interpretation. They want an outcome, and want a president who, like them, just screams bullshit as loud as they can when he can’t get done what he wants to get done. What his supporters want him to get done.
There was never any question that the election of a president who lacked the education and experience in law and governance that would enable him to grasp the not-really-all-that-subtle distinction between criticizing a judge’s decision and attacking his authority as a judge mattered. Still, there are nice folks around the president who ought to be capable of explaining why one is perfectly fair while the other is very wrong. Maybe Trump doesn’t care? Maybe Trump knows what he’s doing and is playing into the ignorance of his supporters?
Maybe the president is indulging in the same simplistic tit-for-tat methods that his opponents are using to undermine his achieving his goals. Calling him “Darth Cheeto” isn’t exactly a nuanced reaction either. If he’s “not your president,” then you’re not American, because he is most assuredly the president of the United States of America, just as Judge Robart is most assuredly an Article III judge. See how that works? Of course, you’re not the president, so when you twit something foolish, it tends not to create the same havoc as when the president does so.
And none of this has much to do with whether Judge Robart’s ruling is sound. Remember the judge who ruled that a male student suing Amherst for expelling him even though he was blacked out drunk and raped by a female student could not depose his accuser because it might re-traumatize his rapist? Crazy, right? That was Judge Robart.
Then there was the ruling on the Seattle police union’s rejection of a contract, during which this occurred:
“To hide behind a collective- bargaining agreement is not going to work,” Robart said during a dramatic court hearing he opened by laying out a path for police-accountability reform and closed with an emotional declaration that “black lives matter.”
. . . .
Robart ended the hearing with deeply personal remarks, in which he noted a statistic that showed, nationally, 41 percent of the shootings by police were of blacks, when they represented 20 percent of the population.
“Black lives matter,” he said, drawing a startled, audible reaction in a courtroom listening to the words coming from a federal judge sitting on the bench.
But they do? Of course they do. But this wasn’t a protest march, but a judge making a ruling. Emotion is not a substitute for legal doctrine, and this was rank bias. As it happens, it’s bias which I can support, because it reflects my policy preferences, but as much as I may like the outcome, the expression of support, it would be intellectually dishonest to suggest this was a proper justification for the exercise of judicial authority.
And as wacky as these decisions were, they still don’t demonstrate that Judge Robart’s decision on Trump’s Executive Order was wrong. The propriety of Judge Robart’s Order, and the decision upon which it is based, stands or falls on its own merit. The government’s emergency petition to the Ninth Circuit was denied, characterized as “rejected” by the New York Times, although it’s a procedural rather than substantive order, meaning that the Circuit has not yet ruled on whether Judge Robart’s Order is appealable or correct.
On the bright side, the government went to the Circuit for relief, and did not announce that it was defying Judge Robart’s Order because it was issued by a “so-called judge.” Or as Andrew Jackson might have responded, “Judge Robart made his decision. Now let him enforce it.” The Republic is safe for one more day, but the public is no wiser for it.
Update: Josh Blackman has done a scholarly job of parsing the law as it related to the Executive Order. The upshot? Who knows?