My inclination is to research the stuffing out of an issue (an appropriate metaphor on the day before Thanksgiving, I think). But after giving it some thought, I realized that no matter how much research I did for this article, I could not convince you if you aren't receptive to evidence in the first place. Many people are not receptive to evidence.
I am writing this article, as well as this blog, mainly for an audience of lawyers. It is likely that some readers, perhaps many, are generally receptive to evidence. This is evidence of what I see as a definite trend in decisions issued by federal judges appointed between January 20, 2017 and July 19, 2021 ("the appointed judges"). So I will list 3 "citations" in support of my article instead of, say, 3,000.
- Latest: An appointed District Judge in Arkansas ruled that voters cannot sue for redress of grievances under the 1965 Voting Rights Act. (The District Judge is reportedly now questioning applicants to be his Clerk whether they politically support Israel or Palestine before he will hire them.) He faulted the 1965 Voting Rights Act because it did not include language he thought should be added to the legislation. His decision was appealed to the Eighth Circuit Court of Appeals, where it was affirmed in a 2-1 decision. The panel majority's decision was written by an appointed Circuit Judge.
- N.D. Texas, one example among many from the Northern District: An appointed District Judge banned the Food and Drug Administration from mailing chemicals needed for medical abortion. Like the District Judge in Arkansas, he thought that the legislation should have included language which it did not have. The case is on its way to the Supreme Court after a brief stop at the Fifth Circuit Court of Appeals. The same District Judge that ruled in this case ordered the Biden Administration in an earlier case to continue the requirement that people applying for asylum in the United States from Mexico must "Remain in Mexico" until their applications are decided. He was ultimately reversed by the U.S. Supreme Court that time, and the case was returned to him. After the case was returned to him, the same District Judge ordered a second time that the Biden Administration must continue the previous requirement. He has also previously ruled that the Title X Family Programming Plan does not confer authority to fund contraception because he would have added language to Title X recognizing a requirement of parental consent and, since the requirement was not in the legislation, he issued an order to strike the law.
- An appointed judge in the Middle District of Florida ruled in a pandemic that it is wrong to require people to wear masks in crowded airplanes.
Okay, that makes "3 supporting citations," but I want to add just one more: appointed judge Aileen M. Cannon.
Well, there you have my "3 supporting citations." It is up to you whether you can see where this is headed, or whether you are willfully ignorant of where this is headed. Either way, I submit that it is pretty clear that this is headed toward cases decided by biased judges issuing activist rulings to add language to legislation or, if the language they want to add is not found in the legislation, to strike the legislation down for that reason. Lacking the votes to enact or amend desired legislation, now as well as previously, these appointed judges have not hesitated to express their own personal opinions as representing the law in past cases. There is no reason I have seen to think that they will hesitate to enshrine their own personal opinions as law in future cases.
I will conclude by rephrasing (only slightly) a remark made by Benjamin Franklin at the conclusion of the Constitutional Convention: "You have a republic, if you can keep it."
P.S.
Before I leave this article, Happy Thanksgiving tomorrow! All of the appointed judges mentioned in this article are each and all members of the Federalist Society. Every one. A good lawyer tests assumptions for their truth or falsity.
Please read the disclaimer. ©2023 Dennis J. Wall. All rights reserved.
Comments