A Shocking Proposal For Trump, GOP To Control The Judicial System

Along with a free press, the rule of law is essential to a well-functioning democracy. Part of the reason that Vladimir Putin had such an easy time destroying a nascent Russian democracy and restoring dictatorial rule was because so little time was spent in the immediate post-Soviet era building a strong judicial system while the majority of the effort was focus on a (too) rapid conversion to a market economy. And the most important element to the effective rule of law is an independent judiciary.

Budding autocrats are especially interested in finding a way to control the judiciary. In Hungary, Viktor Orban and his Fidesz party is in constant conflict with what remains of an independent judiciary. One his earliest attempts to control the judicial process was to create a “judicial czar” who would fill court openings and who also had the ability to assign individual cases to specific judges which would obviously allow the government to control the outcome of certain litigation. In addition, Orban appointed his own additional hand-picked judges to the Constitutional Court in an effort to force early retirement on existing judges, thereby allowing his “czar” to appoint their successors. Remarkably, that effort was struck down by the Court as the people took to the streets to protest Orban’s effort.

In Poland, the Law and Justice party refused to swear in three properly appointed justices to its own Constitutional Court and followed Orban’s lead by appointing five new members of its own choosing. In addition, the Law and Justice controlled parliament passed a law that required the Constitutional Court to reach a two-thirds majority in order to have its decisions be binding. A law passed earlier this year dismissed the Supreme Court justices and, like Hungary, allowed the justice minister to dismiss and appoint the heads of the lower common courts and again created an enormous backlash and protest from the citizenry.

Orban and Jaroslaw Kaczynski, the current head of Poland’s Law and Justice party and the most powerful man in the country, are both accused of trying to create illiberal democracies, in other words a state that has the features of a democracy but is in essence an autocracy.

We have seen a similar situation in another country. There, the ruling party refused to seat a qualified and properly nominated judge to the Supreme Court and instead changed the rules to appoint someone else who was deemed appropriate by a group the provides a list of judges that would be “acceptable” to the ruling party. In addition, the ruling party, which had created an unprecedented number of vacancies by refusing to seat appointees from the prior government, has appointed judges whom independent groups have determined are distinctly unqualified but whose politics made them agreeable to the ruling party. The ruling party has eliminated the ability of the minority party to object to and block judges, an ability the ruling party took full advantage of when it was in the minority in order to create that record number of vacancies.

Now, an early leader of that group that essentially picks judges for the ruling party, essentially another version of a judicial czar, has a proposal to further consolidate the judicial branch under the control of the ruling party. The proposal is to create an extraordinary number of new judicial positions, increasing the size of the judiciary by anywhere from one-third to one-half. All of those new judges would be signed off on by this new judicial czar. In addition, this czar wants to replace all the judges in the administrative law courts, which are currently non-partisan fact finders, with lifetime appointments made by the ruling party and signed off on by the judicial czar.

The country I’m describing is not some third world country or a country with a short history of democracy or a long history of dictatorships. No, it is, of course, the United States. The ruling party is the Republicans. The Supreme Court nominee that the ruling party refused to seat was Merrick Garland and the 60 vote rule for Supreme Court positions was eliminated by Republicans in order to seat Neil Gorsuch. The group that selects acceptable judges for the ruling party, the new judicial czar, is the Federalist Society. The independent group that has determined that some of the judges are uniquely unqualified is the American Bar Association, the traditional and independent arbiter of a judges qualifications. The ability of the minority party to block judges is the blue slip, a rule that Republican used to block an unprecedented number of Obama nominations and which they now dispose of whenever they want. And Steven Calabresi, a co-founder of the Federalist Society, is the source of this breathtaking proposal to transform the American judicial system.

Calabresi’s proposal would essentially pack the American courts with nearly 450 new judicial positions, all of whom would be nominate by Trump, signed off on by the Federalist Society, and approved by the Republican majority. That is on top of the over 100 judicial vacancies that Trump can fill due to Republican obstruction during the Obama years. By next year, nearly 1/8 of all federal judges will have been appointed by Trump, again with approval from the Federalist Society. Calabresi also wants to replace all 158 administrative law judges, all of whom are currently non-partisan career public servants, with judges appointed by Trump who will serve for life.

Now, you may think that the comparison between what the Republicans and Trump are doing with budding autocracies in Hungary and Poland is a bit of a stretch. And you could also say that Calabresi is merely an independent conservative firebrand who holds no official government office and is not reflective of the position of Trump and Congressional Republicans. And that might be true. But the Republicans have shown themselves willing to approve clearly unqualified judges simply because of their youth and adherence to Federalist Society principles (if you can call them that). And Trump certainly seems to have a belief that the judiciary is essentially there to do his bidding. So, despite what we may think, it shows the sad state of our country, and how we are “normalizing” the budding trappings of autocracy, that the comparison is only a “bit of a stretch”.

In his short Presidency, Donald Trump has managed to attack both pillars of an effective democracy, a free press and an independent judiciary. From “fake news” to trashing CNN and trying to force ATT to divest itself of the news outlet, Trump has shown his contempt for the press. And his comments denigrating Judge Curiel during the campaign to those who struck down his Muslim ban are similar attacks on judicial independence. The unprecedented GOP obstruction of Obama appointees and the stolen Supreme Court seat of Merrick Garland were further attacks on our judicial system. The next step for any autocracy is to pack the judiciary with loyal appointees, just as Calabresi proposes. You may not believe it could happen here. But that’s what happens in every country that moves from democracy to autocracy, and no one can believe it.

Originally published at tidalsoundings.blogspot.com on November 26, 2017.