Judges are not robots. They are allowed to have strong opinions and complicated emotions and to express themselves freely outside the judicial forum. But judges are not supposed to be Fox News commentators or radio shock jocks either. So it’s deeply troubling to see a burgeoning new trend among conservative jurists during Donald Trump’s presidency: the interjection of purely political hot takes into supposedly impartial judicial opinions. This phenomenon isn’t limited to Trump appointees. Some Trump judges have already mastered this art, but it seems to have caught on among some state judges who appear to be gunning for a promotion to the federal judiciary.
The latest example comes from Michigan, whose court of appeals blocked a ban on vaping products in the state on Thursday. Judge Mark Boonstra—an appointee of former Republican Gov. Rick Snyder—joined the majority opinion striking down the ban. But he tacked on a separate 13-page polemic attacking Michigan Gov. Gretchen Whitmer’s orders shutting down schools and nonessential businesses while limiting travel within the state. Whitmer has become the target of ire from the president as well as armed protesters who have occupied the state Capitol, forcing the Legislature to shut down due to safety concerns. Boonstra is now pouring gasoline on the fire. His concurrence included an ominous proclamation: “Totalitarianism has no place in America. Has it arrived? Well, that’s a question for another day.” While pretending to take no position on this apparently open question, Boonstra then cited far-right outlets to support his thinly veiled accusation that the governor has perhaps brought “tyranny” to Michigan.
One such excerpt from American Greatness, a fringe magazine that routinely promotes Trumpist conspiracy theories, was titled “The Tyrannical Soul of Gretchen Whitmer.”
Boonstra quoted the article’s claim that Whitmer is exercising “despotic rule” and “tyranny,” as well as this dark warning: “She has a tyrannical soul, and a tyrannical soul will yield to nothing but superior force. Somehow Whitmer, and others like her, will have to be compelled to respect the rule of law and the rights of the people.” (The armed protesters appear to have taken up this suggestion when they stormed the Capitol brandishing firearms.) He then quoted other articles calling Whitmer a “dictator” engaged in a “stunning power grab” while “imposing Orwellian measures.” Boonstra even cited a piece in the Federalist—a hate magazine that recently endorsed coronavirus “parties” for voluntary infection—berating Whitmer as a “little tyrant.”
None of this has anything to do with the vaping ban before the court. In fact, Boonstra acknowledged there may not be a direct connection between Michigan’s vaping ban and a pandemic that’s taken nearly 100,000 American lives. So, to justify his diatribe, Boonstra wrote that “this case highlights for me a growing concern about governmental overreach,” and Americans’ need for “a wake-up call.”
“Never in our history has virtually all of America been on lock-down,” Boonstra continued. “And never before has our government dared to presume that it had the authority to impose such a lock-down upon us.” He then condemned Whitmer’s controversial lockdown orders, complaining about her temporary ban on paint sales. “The state of America today was unthinkable yesterday,” Boonstra huffed. “The mere suggestion of it would have been cast aside as nonsense, a reactionary conspiracy theory. But here we are. Is America being taken for a test drive? If we bend today to the will of the authoritarians amongst us, what will they dare come for tomorrow? Our guns and churches? And anything else we might cling to?”
Get it? The guns and the religion? Funny, right? Following this clever reference to Barack Obama’s gaffe, the judge pondered whether Americans will “live under the thumb of autocrats” forever and inserted into his opinion an entire Wall Street Journal editorial opposing lockdowns.
If this sounds like a transparent effort to stir up populist hatred for a democratically elected governor, that’s because it is. Boonstra wastes very little time on the merits of the vaping ban because the very purpose of this piece of judicial craftsmanship has nothing to do with the law. This language sounds a lot like an appalling opinion issued by Justice Rebecca Grassl Bradley of the Wisconsin Supreme Court last week. In that case, the court’s conservative majority repealed the administration’s stay-at-home order, but that was not enough for Bradley, an appointee of former Republican Gov. Scott Walker. In a separate opinion, she accused the current administration—led by Gov. Tony Evers, a Democrat—of exercising “authoritarian power” by attempting to shut down the state. And she compared the order to the internment of Japanese Americans during World War II, as if being forced to stay in your house is similar to being shipped to a camp and detained indefinitely on account of your ancestry.
Both Boonstra and Bradley appear to be taking their cues from Trump judges. James Ho, installed by Trump to the 5th U.S. Circuit Court of Appeals, has distinguished himself with opinions including one that would shield police officers from liability for killing innocent people with the claim that the way “to stop mass shootings” would be to “stop punishing police officers who put their lives on the line to prevent them.” In April 2018, Ho argued in an opinion that campaign finance restrictions are unconstitutional because the rich need to be able to buy elections in order to protect themselves from onerous overregulation. Ho is also notable for having decried abortion as a “moral tragedy” while baselessly casting a district court judge as an anti-Catholic bigot.
This week the Senate, which will not move on a COVID relief bill, held hearings for Cory Wilson, a Mississippi Court of Appeals judge who has winningly referred to Barack Obama as “King Barack,” “petty and small,” “a fit-throwing teenager,” the “Anointed One,” a “radical leftist,” and “shrill, dishonest, and intellectually bankrupt.” Wilson has also called Hillary Clinton “Crooked Hillary,” “criminal and clueless,” and either “felony dumb or willfully ignorant.” He has also proudly tweeted his loathing for the Affordable Care Act, which he calls “perverse” and “illegitimate,” as well as for Roe v. Wade.
And, not to be outdone, Trump has nominated Justin Walker, a 37-year-old who has never tried a case or practiced law at a private firm, on the strength of his Fox News television advocacy (162 media appearances) of Brett Kavanaugh. Walker told TV viewers that Christine Blasey Ford was “mistaken” about her attacker and attacked the Democratic senators who supported her. His sole notable opinion in his brief stint as a district judge read more like a sermon than a legal analysis. In it, Walker accused Louisville’s mayor of issuing a “stunning,” “dystopian” order barring drive-in church services. (In reality, this order did not exist.) At his investiture ceremony, Walker vowed he would “not surrender” in the “war” against “critics” who “describe us as deplorable.”
These nominees are sending a clear message to judges like Bradley and Boonstra: The president rewards open partisan displays with plum job offers. There are no consequences for shattering norms of judicial behavior. If Trump’s judge whisperer, Leonard Leo, likes you, Republicans will defer to his judgment and grant you a lifetime position in the federal judiciary.
There was a time in which “judicial temperament” meant something more than having a pulse and a judicial seat. Not too long ago, judges would take pains to at least appear neutral, objective, and judicious—if not just for their own self-interest, then for the good of the judicial branch as a whole. Even if the whole “appearance of objectivity” was always more aspirational than real, it was a standard against which most jurists measured their words and deeds, most of the time. Under Trump, the rules have changed. It is not enough to be a partisan, even a vengeful one. It’s also de rigueur to be a pundit and a prizefighter. If you can inflame citizens to action with your pithy wordplay, all the better. And if you can throw around words like tyranny and treason with your doctrine, all the better. Really, why bother with doctrine at all if it will only get in the way of your judicial ambitions? (Boonstra is running for reelection in November, when he’ll share the ballot with Trump.)
The standard to which jurists once held themselves and others was whether a litigant could enter their courtroom certain in the belief that they could at least get a fair shot at justice. More and more the standard for some jurists, and particularly those who take their cues from a president who doesn’t believe in an independent judiciary, is quite a bit lower: They seem to be asking simply whether, if this whole judging thing doesn’t work out, they might still get a prime-time slot on Fox News.
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