Freedom Line Blog

Whatever one’s opinion of Donald Trump, his tweets or his legislative accomplishments to date, he has unmistakably achieved great progress on the issue perhaps foremost among his supporters’ minds.  Along with Senate Majority Leader Mitch McConnell (R – Kentucky), whose efforts began while Barack Obama was still president after Justice Antonin Scalia’s passing, Trump is already reshaping the nation’s judicial branch, as The Wall Street Journal’s Kimberly Strassel details:

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Mr. Trump has now nominated nearly 60 judges, filling more vacancies than Barack Obama did in his entire first year.  There are another 160 court openings, allowing Mr. Trump to flip or further consolidate conservative majorities on the circuit courts that have the final say on 99% of federal legal disputes.  This project is the work of Mr. Trump, White House Counsel Don McGahn and Senate Majority Leader Mitch McConnell.  Every new president cares about the judiciary, but no administration in memory has approached appointments with more purpose than this team.”

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Today the Fifth Circuit Court of Appeals refused to lift an injunction prohibiting the Obama administration from implementing an executive amnesty program for millions of illegal immigrants.

Ken Paxton, the Attorney General of Texas who is leading a 26 state lawsuit against President Barack Obama’s amnesty order, applauded the court for stopping “a drastic change in immigration policy” since the program bypassed congressional approval. Texas is alleging significant financial burdens on state taxpayers if the federal government is allowed to proceed.

The Obama administration is now considering whether to appeal the Fifth Circuit’s opinion to the U.S. Supreme Court, a move which could backfire and derail a policy goal long sought by immigration activists.

This much we know: the rule of law has been preserved, at least for today.

H/T: New York Times

Mark your calendars because today the Fifth Circuit Court of Appeals granted the Obama administration’s plea to grant a fast-track appeal of a lower court decision blocking a controversial amnesty program for illegal immigrants.

The next stop on the constitutional carousel occurs April 17, when lawyers from the Texas Attorney General’s office representing 26 states square off against counterparts from the federal government. At issue will be whether to overturn a district court order halting implementation of an executive action granting work permits and deportation waivers to an estimated five million people in the United States without authorization.

Granting the fast-track petition doesn’t necessarily mean that the Fifth Circuit – widely considered the most conservative jurisdiction of the federal judiciary – will side with the Obama administration. More likely, it’s a courtesy gesture to the executive branch acknowledging that a resolution to this dispute is needed sooner rather than later. Even still, a final decision could take months to appear and both sides have indicated they will litigate all the way to the Supreme Court to vindicate their position.

In the end, what today’s announcement probably means is that the Supreme Court will hear an appeal next fall instead of the following spring. Just in time for presidential primary season.

The Washington Times captures a revealing back-and-forth between an Obama Justice Department lawyer and a conservative D.C. Circuit appeals judge over whether the text of the Constitution or court precedent should decide when the President can make recess appointments:

“Once you remove yourself from the principles set forth in the Constitution — inter-session versus intra-session — you are adrift,” said Judge Thomas B. Griffith.

He was joined in his pointed questioning by Chief Judge David B. Sentelle, who said the clause in the Constitution giving presidents recess appointment powers refers to “the recess,” which he said suggests the one at the end of each year, not the breaks Congress regularly takes for holidays, weekends or other reasons.

If the court were to rule that way, it would upset the balance that has been maintained over decades, and would conflict with another appeals court’s precedent — though that didn’t bother Judge Sentelle.

“Forget about a century of precedent — go back to the Constitution,” he told Beth Brinkmann, the Justice Department lawyer who argued the case for the Obama administration.

She warned that going that route would change the system of checks and balances fundamentally.

Sentelle sounds like my kind of judge.  Let’s hope this is the beginning of a trend.

This year’s Conservative Political Action Conference (CPAC) is set to be the biggest ever, and CFIF Vice President of Legal and Public Affairs Timothy Lee is honored to be selected as one of its speakers.

His panel, entitled “The Left’s Campaign to Reshape the Judiciary,” is scheduled for 9:30 a.m. this Friday, February 11 in the Marshall Ballroom.  Kelly Shackelford of the Liberty Institute will moderate the panel, which also includes Ken Klukowski of the American Civil Rights Union and Dan Pero of the American Justice Partnership.   Our judicial system is a primary tool by which the political left seeks to remake America to fit its distorted image, and we must remain vigilant against that scheme.  Especially with the 2012 presidential kicking off, this CPAC isn’t one to miss.

Retirement must be a wonderful thing for former Supreme Court Justice David Souter.  Unburdened by the consequences of deciding cases, the judicial version of a RINO (Republican In Nomination Only) is telling Americans what he wants them to hear.  In essence, judging isn’t easy.  Thus, demands to restrict a judge’s attention to the text of a statute or the Constitution itself when deciding a dispute are pointless because a written law can’t contemplate every situation.  Sometimes a judge has to be a gap-filler.

Souter’s recent commencement address at Harvard is worth the read to get a sense of a pointed critique of Justice Antonin Scalia’s countervailing view of textual interpretation (A Matter of Interpretation).  Ironically, the main gripe with Souter’s speech isn’t its substance, but its timing.  Even Dahlia Lithwick of Slate stammers to explain a reason for waiting until after serving 19 years on the Supreme Court to make a cogent counterpoint.

Are the Justices overworked?  They do, after all, get summers off.  Of the current crop, only Justices Steven Breyer (Active Liberty) and Scalia have written books explaining their methods of interpretation – and Scalia’s is an edited version of lectures he gave.  Since Souter didn’t take the time to write a systematic approach to judging while judging, perhaps he’ll use some of his self-imposed availability to give future judges a sense of how to wrestle with the complexities of the job.

Given Souter’s temperament, such a book may be published posthumously.