By Paul Waldman
Columnist
September 6, 2022 at 2:11 p.m. EDT
“Nutty. Crazy.” “Twisting the law into a pretzel.” “A poorly sewn-together fabric of factual misstatements and legal BS.” “Laughably bad.” “So bad it’s hard to know where to begin. … Frankly, any of my first-year law students would have written a better opinion.”
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Those were some of the reactions from legal experts to U.S. District Judge Aileen M. Cannon’s decision to grant Donald Trump’s request for a special master to review documents seized from the former president’s Mar-a-Lago estate in an August search that turned up boxes full of classified, secret and top-secret information. The request could push resolution of the case past the 2024 election.
That this judge would give Trump whatever he wanted was, sadly, not a surprise. She was appointed by Trump and confirmed after his defeat but before Democrats took control of the Senate in 2021. We’ve come to expect that if that’s how someone got on the bench, they’ll likely show themselves to be a Trumpist political operative in a robe, rather than an objective jurist.
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This is our new reality. Nearly every political controversy will include a vital legal component, in which Republicans find a friendly Trump judge to grant whatever preposterous request they make, injecting the courts in place after place they have little or no business meddling.
In some cases (including this one) it might merely slow things down, giving the GOP time to press its advantage or avoid disaster. In other cases it will give Republicans an outright victory, on their policy goals or the procedures that help them win more elections. But we’re now in an era in which the courts are more political than ever.
This is not an accident, and while it suits Trump perfectly, it was not his design. He was the vehicle of a transformation planned and executed by the Federalist Society, the wider conservative legal movement, and Senate Minority Leader Mitch McConnell (R-Ky.). The plan was not just to install as many conservative judges as possible, but to politicize the courts in an unprecedented way.
That’s why Trump’s appointees were qualitatively different from those of previous Republican presidents. The Bushes and Ronald Reagan appointed lots of conservative judges, but they also tended to have substantial legal credentials. Even as they leaned toward conservative outcomes, they also maintained a foundation of respect for the system and the law — and they usually (though not always) had some shame, a desire to maintain a reputation as fair and objective jurists.
That is most assuredly not how the average judge appointed by Trump sees their role. Cannon’s ruling is the latest example, but we’ve seen others before. Back in April, District Judge Kathryn Kimball Mizelle in Florida issued a nationwide injunction ending the mask mandate on interstate travel, on the ludicrous grounds that stopping the spread of an airborne virus by requiring masks on planes and trains was outside the purview of the Centers for Disease Control and Prevention.
Everyone knew what was really going on. Mizelle’s legal analysis was inane, but it didn’t have to be grounded in any reasonable reading of the law. All that mattered was that she delivered the outcome Republicans wanted.
Like Cannon, Mizelle was confirmed after Trump lost the election. Like a number of Trump’s other nominees, Mizelle was rated “Not Qualified” by the American Bar Association, but every Republican present in the Senate voted to confirm her, conservatives and alleged “moderates” alike. They knew exactly what they were getting, and it was just what they wanted.
The shift in GOP thinking on the judiciary from “We want conservative judges” to “We want partisan hacks” didn’t start with Trump. You may recall that Republicans decided the extremely conservative Chief Justice John G. Roberts Jr. was a traitor because he didn’t want to strike down the Affordable Care Act on the dubious grounds Republicans had offered in their many lawsuits against it.
That’s because they now have a basic expectation that, if you’re a Republican-appointed judge, it’s your job to nullify laws passed by Democratic Congresses and to keep Democratic presidents from carrying out their agendas. And if a former Republican president is under investigation for crimes, GOP-appointed judges must make sure the law treats him with a deference afforded no other suspect.
This is our future as long as Trump judges remain on the bench. In every election, every issue debate, and every controversy, the first thing Republicans will do is prepare their lawsuits and start shopping for Trump judges who will be guaranteed to rule in their favor.
They won’t win every case; they did fail to get the courts to overturn the 2020 election, and even the right-wing supermajority on the Supreme Court will rule against them from time to time. But they got the judiciary they wanted, one dominated by hacks whose respect for the law will almost always yield to the GOP’s partisan interests. And they’re going to use it.
Columnist
September 6, 2022 at 2:11 p.m. EDT
“Nutty. Crazy.” “Twisting the law into a pretzel.” “A poorly sewn-together fabric of factual misstatements and legal BS.” “Laughably bad.” “So bad it’s hard to know where to begin. … Frankly, any of my first-year law students would have written a better opinion.”
Sign up for a weekly roundup of thought-provoking ideas and debates
Those were some of the reactions from legal experts to U.S. District Judge Aileen M. Cannon’s decision to grant Donald Trump’s request for a special master to review documents seized from the former president’s Mar-a-Lago estate in an August search that turned up boxes full of classified, secret and top-secret information. The request could push resolution of the case past the 2024 election.
That this judge would give Trump whatever he wanted was, sadly, not a surprise. She was appointed by Trump and confirmed after his defeat but before Democrats took control of the Senate in 2021. We’ve come to expect that if that’s how someone got on the bench, they’ll likely show themselves to be a Trumpist political operative in a robe, rather than an objective jurist.
ADVERTISING
This is our new reality. Nearly every political controversy will include a vital legal component, in which Republicans find a friendly Trump judge to grant whatever preposterous request they make, injecting the courts in place after place they have little or no business meddling.
In some cases (including this one) it might merely slow things down, giving the GOP time to press its advantage or avoid disaster. In other cases it will give Republicans an outright victory, on their policy goals or the procedures that help them win more elections. But we’re now in an era in which the courts are more political than ever.
This is not an accident, and while it suits Trump perfectly, it was not his design. He was the vehicle of a transformation planned and executed by the Federalist Society, the wider conservative legal movement, and Senate Minority Leader Mitch McConnell (R-Ky.). The plan was not just to install as many conservative judges as possible, but to politicize the courts in an unprecedented way.
That’s why Trump’s appointees were qualitatively different from those of previous Republican presidents. The Bushes and Ronald Reagan appointed lots of conservative judges, but they also tended to have substantial legal credentials. Even as they leaned toward conservative outcomes, they also maintained a foundation of respect for the system and the law — and they usually (though not always) had some shame, a desire to maintain a reputation as fair and objective jurists.
That is most assuredly not how the average judge appointed by Trump sees their role. Cannon’s ruling is the latest example, but we’ve seen others before. Back in April, District Judge Kathryn Kimball Mizelle in Florida issued a nationwide injunction ending the mask mandate on interstate travel, on the ludicrous grounds that stopping the spread of an airborne virus by requiring masks on planes and trains was outside the purview of the Centers for Disease Control and Prevention.
Everyone knew what was really going on. Mizelle’s legal analysis was inane, but it didn’t have to be grounded in any reasonable reading of the law. All that mattered was that she delivered the outcome Republicans wanted.
Like Cannon, Mizelle was confirmed after Trump lost the election. Like a number of Trump’s other nominees, Mizelle was rated “Not Qualified” by the American Bar Association, but every Republican present in the Senate voted to confirm her, conservatives and alleged “moderates” alike. They knew exactly what they were getting, and it was just what they wanted.
The shift in GOP thinking on the judiciary from “We want conservative judges” to “We want partisan hacks” didn’t start with Trump. You may recall that Republicans decided the extremely conservative Chief Justice John G. Roberts Jr. was a traitor because he didn’t want to strike down the Affordable Care Act on the dubious grounds Republicans had offered in their many lawsuits against it.
That’s because they now have a basic expectation that, if you’re a Republican-appointed judge, it’s your job to nullify laws passed by Democratic Congresses and to keep Democratic presidents from carrying out their agendas. And if a former Republican president is under investigation for crimes, GOP-appointed judges must make sure the law treats him with a deference afforded no other suspect.
This is our future as long as Trump judges remain on the bench. In every election, every issue debate, and every controversy, the first thing Republicans will do is prepare their lawsuits and start shopping for Trump judges who will be guaranteed to rule in their favor.
They won’t win every case; they did fail to get the courts to overturn the 2020 election, and even the right-wing supermajority on the Supreme Court will rule against them from time to time. But they got the judiciary they wanted, one dominated by hacks whose respect for the law will almost always yield to the GOP’s partisan interests. And they’re going to use it.
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