Venue Shopping

This won’t hurt a bit.

We recently had a little verbal dust-up between the Chief Justice of the Supreme Court and the President. Who was right? Trump was. Having alienated most of you with that statement, I will now alienate the remainder. In the immediate situation, Trump was on shaky ground because the Executive Order in question appears to violate an existing statute. In the main, his point is correct. The judicial system is being misused by his political opponents.

Rule of Law is a majestic thing. It is one of the two cornerstones of democracy. However, the justice system is administered by human beings, even the best of whom have the usual human foibles. We all have a set of preconceptions through which we view the world around us. We all engage in flawed thinking. We all deviate from logic/objectivity when buffeted by the hot winds of emotion. The court system is subject to abuse, and gaming the system is a frequent occurrence.

Sixty years later, I vividly remember reading (and rereading) a passage in Thucydides’ History of the Peloponnesian Wars lamenting the decline of Athenian democracy resulting from abuse of the court system. Some things haven’t changed in the last 2,500 years.

My favorite gaming the system story comes from the O.J. Simpson trial. Once his defense team discovered Mark Fuhrman, they transformed a murder trial into an indictment of racism in the LAPD. During the trial, the jurors were taken on a tour of O.J.’s house. It was adorned with large pictures of O.J. cavorting with white skinned celebrities. The defense team took all those down and replaced them with pictures of O.J. cavorting with black skinned celebrities. The lesson is that narrative is a powerful thing.

RESIST and its cadre of lawyers have decided that they can throw sand in the gears of the Trump agenda by taking him to court as often as they can find a legal hook to do so. It is not too hard for them to find a district judge whose record of decisions leads them to rightly believe that a decision against Trump and a lecture from the bench will be forthcoming. Most of the suits are filed in the Ninth Circuit, based on the likelihood that they will be upheld on appeal to the Circuit. Virtually any cases that go to the Supreme Court will be overturned, but sand has been thrown in the gears and the Administration has to devote time and resources to the proceeding. The process is called venue shopping. We have a verdict in mind and we look for a judge whose public record indicates a good chance of getting the desired verdict.

The first abuse is that a district court judge can direct policy for the whole country. We elect representatives and presidents based on the policies they promise to enact, and we can hold them to account every few years if they fail to implement those policies. A district judge has no business in that process. There are certainly occasions in which Congress enacts a law, or the President signs an Executive Order, or the administrative state promulgates a regulation that violates the Constitution. Lower court judges may wish to weigh in with their thoughts to display their erudition, but the venue for constitutional challenge is solely the Supreme Court. Marbury v. Madison asserted the Court’s ability to determine constitutionality; it did not empower 900+ interpreters. Only issues of overriding importance and serious assaults on the Constitution should be subject to such litigation.

Secondly, we have a massive failure to engage in “shoe on the other foot” contemplation. Warfare, including political warfare, generates escalation in brutality and countermeasures. For every offense, a defense will eventually be invented. No defense remains impervious over time. Escalation produces retaliation. Any combatant should think twice about escalation. If you use poison gas, the other side will don masks and send something deadlier your way in due course.

The shinning judicial example is the filibuster, a Senate rule of long standing. Harry Reid decided that it was so important to stop the DC Circuit from reining in the administrative state that he tanked the filibuster for appeals court judicial appointments. He succeeded in packing that court with justices to his and the President’s liking. Sure as the sun sets in the West, Republicans eliminated the filibuster for Supreme Court justice nominees when they took over the Senate.

RESIST did not invent the sand-in-the-gears legal strategy. However, they have ramped it up to a whole new level. The California Attorney General regularly brags about the scores of lawsuits he’s filed. Big and prestigious law firms have squads of attorneys devoting lots of time looking for hooks. Give some thought to the situation of a Democratic President and Congress being thwarted at every turn by injunctions from Trump appointed district court judges who have been meticulously shopped. I can visualize the fire emanating from MSNBC’s hair.

It is time to heed Thucydides’ warning. We should stop abusing the justice system to support partisan wrangling. It is a serious assault on our democracy.