Can Trump's presidency shake Americans' undue respect for the judicial process?
Trump's unsuccessful attempt to have the courts look into the election irregularities had a welcome effect of making us look into how judging gets done.
One would think the judicial decision-making process is a natural part of journalistic reporting, but such is not the case. Our government has three branches — executive, legislative, and judicial — yet only the former two are subject to properly intrusive journalistic investigation; the Judiciary gets from the press nothing but pious awe. While Trump's "obstruction of justice" is searched for near and far, is examined with a telescope and a microscope, the very real obstruction of justice done from the bench in plain view is not examined or reported at all.
Why? We are conditioned from the cradle to venerate judges. Somehow, the pessimistic view of human nature that "power corrupts, absolute power corrupts absolutely" is not applied to them. The press treats judges as Olympian gods, not as government functionaries whose follies and misdeeds should be exposed.
Yet to judge by recent posts critical of the Supreme Court, Trump may have caused some cracks to appear on that stone wall of uncritical, awed acceptance. Yet there is no focused, structural criticism of the specifics of judicial decision-making.
That criticism, I think, should focus on the basic constitutional promise of "due process of the law" that was intended to prevent arbitrary judging and insure that the process is fair. Under no interpretation of "due process" can a judge be a party to the case argued before him. A judge has to be impartial — which a party to the case cannot. Hence, a judge has to recuse himself when he discovers that his impartiality may be questioned. In practical terms, this means that a judge cannot introduce his own argument — the purpose of the argument being to sway the judge in its favor, under "due process of the law," the argument for adjudication has to come from parties, not the judge. The function of a judge is to certify as a winner the party with a stronger argument, not to make stronger the argument of the party the judge wants to certify as a winner.
This is not what happens in federal courtrooms. Judges' own sua sponte argument is what decides many a case. It happened, multiple times, to me — I briefly outlined my experience in this article from Attorney at Law Magazine — and I see no reason why Trump's cases weren't thrown out just because judges wanted to throw them out (which they can easily do under the present arrangement), not because his claims of fraud had no merit.
The press's investigation of the way judges operate is long overdue. Sua sponte decision-making allows a judge to arrive at any decision whatsoever, since parties' arguments, no matter how valid, proves nothing: while judges indeed take for adjudication parties' arguments (for which lawyers get paid tens of thousands of dollars), they adjudicate the sua sponte argument of judges' own concoction, deciding cases the way they want to, not the way they have to.
Trump gave us some groundbreaking achievements during his presidency. If he now forces the press to start looking into how judging is actually done — and more specifically, into whose argument gets adjudicated — thus forcing judges to abide by due process of the law and adjudicate parties' argument, not judges' — his presidency will be transformative like no other one in America's history.
Lev Tsitrin is the founder of the Coalition Against Judicial Fraud (www.cajfr.org).
Image via Max Pixel.