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Obama Judges and Trump Judges

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Say this for the recent Federalist Society campaign rally, there was none of this Robertsesque piety about the apolitical judiciary:

This is the Federalist Society that was on display during McConnell and Barr’s speeches last week. We saw a rare public glimpse of it during McConnell’s address, when he bragged that “we have flipped the 2nd Circuit, the 3rd Circuit, and we will flip the 11th Circuit.” The crowd applauded as McConnell described the courts in raw partisan terms: He “flipped” these courts by confirming more Republican appointees, creating a majority of judges nominated by GOP presidents. And why wouldn’t this throng of Federalist Society foot soldiers respond with gratitude? Chief Justice John Roberts may say there are no “Obama judges or Trump judges.” But this crowd knew the truth: The more “Trump judges” McConnell pushes onto the bench, the more likely it is that the courts will rule for the GOP.

McConnell’s speech, however, was downright discreet when compared with Barr’s barnburner the next night. The attorney general’s utterly deranged speech presented a theory of executive authority tailor-made for Trump, describing the president as a monarch who has been unlawfully restrained by courts and Congress. Barr bashed Democrats in overtly partisan terms, accusing them of launching “a war to cripple” Trump’s presidency “by any means necessary.” He charged Democrats with an “unprecedented abuse” of the Senate’s ability to block judges, having apparently slept through the Merrick Garland blockade. And he dismissed Congress’ oversight of the executive as “constant harassment,” concluding that “it is the left that is engaged in the systematic shredding of norms and the undermining of the rule of law.”

Barr’s speech received continual applause and standing ovations throughout his address. The leaders of the Federalist Society had gathered in that room to celebrate their success under the current administration. And Barr delivered the rallying cry they craved: He defended Trump’s lawlessness by reframing the president as a victim of Democratic excess, using constitutional tools to make the executive branch great again.

What McConnell is saying here is completely banal — if it wasn’t true Merrick Garland would be on the Court right now. And yet much of the discourse surrounding the judiciary by convention requires people to deny the obvious point the Senate Majority Leader has no problem acknowledging. The felt need to believe in the myth of the courts is very strong.

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