Monday, February 12, 2018
Lithwick and Vladeck write that “what appears to be driving the critics’ broad and novel claim against federal judges who rule against President Trump is nothing more than the assertion that these judges have simply gotten it wrong, often by making things up to push their own political agenda.” At this juncture, I have already written nearly a book-length treatment of how the judiciary has responded to the Trump Administration’s initiatives. Many of these judges have not “simply gotten it wrong.” They are treating the president in ways no court has ever done so before. Yet, I am very careful not to ascribe the judgments to politics in this fashion. (I can’t speak for others.) I avoid the sort of rhetoric that critics accuse me of—indeed, rhetoric that these critics are themselves guilty of. I do not call judges “politicians.” I do not refer to judges as “hacks.” Nor do I write that judges are acting in bad faith. In my oft-cited October 2017 piece from National Review, I freely admit that the rulings were “well intentioned,” but maintain they were “profoundly flawed.”
You sort of have to RTWT if you're interested in this topic -- the excerpt doesn't really capture the disagreement. Personally, I don't really see how the "judicial resistance" judges, professors and supporters can really see themselves as lawyers or as doing law. I except people like Amar and perhaps Tribe, with whom I suppose I would have principled disagreements. But the rest of them seem just plain political. So, yes, it seems to me at least some judges are absolutely acting in bad faith. You have to stand on your head and squint your eyes to see anything else. Is there anything to be gained by denying it? Perhaps but I don't really see it. Judge Posner just came out and declared that he was deciding cases based on his best political and economic judgment so long as the law didn't get in his way. Many judges now seem to be doing that, even if they have to push a bit of law out of the way. And of course, that's what we professors encourage them to do. We're a dyin' breed, we cowboys of the law.