The problem with federal judges

The nomination of Judge Ketanji Brown Jackson to the U.S. Supreme Court has only partly brought a spotlight on the abuse of our legal system and the Constitution by federal judges.  I have observed a fair number of judges in the forty-plus years I've practiced law, and I have observed what federal judges do with the power their "lifetime" appointments grant them.  My conclusion is that too many federal judges consider God to be just another person subject to a judge's jurisdiction.

The level of unbounded arrogance is truly astounding.  It is unbounded because impeachment is the only method of removing a judge who abuses his power.  The only federal judge impeached in recent history was Alcee Hastings, a U.S. district judge in Florida who was impeached (with 17 counts including bribery, perjury, and obstruction of justice) and then removed from office in 1989 by the U.S. Senate.  Four years later, he was elected to U.S. House of Representatives and re-elected many times thereafter.

I do not believe that any federal judge has ever been removed for violating the oath to "support the Constitution of the United States."  That is unlikely to change because the leftists in control of the Democrat party view the Judiciary as the vehicle for dramatic changes in American society that they cannot enact through legislation.

With the politicization of the judicial confirmation process in the U.S. Senate starting with the scurrilous attack on Judge Robert Bork in 1987, it is unlikely that any judicial nominee will be rejected for thumbing his nose at the Constitution — including the Constitution's exclusive grant of the legislative power to Congress.

That brings me to the record of Ketanji Brown Jackson as a U.S. district judge and her performance at the Senate confirmation hearings.  Her testimony was quite an act.  While proclaiming her fidelity to originalism and following the text of the Constitution, she disavowed any knowledge of the meaning of the word "woman."  Obviously, she will not be following Justice Antonin Scalia's practice of referring to the many unabridged dictionaries he kept in his office.  That moment was a source of much (justifiable) ridicule, but it only hinted at her judicial philosophy of unbounded power in the service of her political beliefs.

The case that best illustrates her arrogance of power was her decision (later reversed) in Make the Road New York v. Wolf, when she was a U.S. district judge in the District of Columbia.  The case involved an attack on the statute that gave the Trump administration discretion for expedited removal of a class of inadmissible aliens.  Congress gave "sole and unreviewable discretion" to the Executive Branch to make such decisions.  Despite that language and a 9th Circuit Court of Appeals decision affirming the "unreviewable" nature of the discretion, Judge Jackson proceeded to review the Trump administration's decision to remove certain illegal aliens and issued a nationwide injunction against such removals.

The Circuit Court of Appeals for the District of Columbia was not impressed with her decision.  In 2020, it wrote, "There could hardly be a more definitive expression of congressional intent to leave the decision about the scope of expedited removal ... to the Secretary's independent judgment" when reversing her.

The judge's abuse of language in that court decision and in her Senate testimony reminds one of the scene in Alice in Wonderland by Lewis Carroll, published over 150 years ago:

"When I use a word," Humpty Dumpty said in rather a scornful tone, "it means just what I choose it to mean — neither more nor less."

"The question is," said Alice, "whether you can make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be master — that's all."

There is no doubt that Judge Jackson's deceitful evasion when asked the definition of "woman" was designed to serve her mastery of all that she surveys from the bench.  Additionally, it served her political interests because her supporters would cancel her in a second if she undercut the Humpty Dumpty "logic" of a man becoming a woman simply by proclaiming it to be true.

When judges can use godlike powers to redefine the nature of humanity, they are well on their way to becoming masters of us all.

Image: National Archives.

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