Marty Lederman takes a look at the dissent from a Trump-appointed judge in today’s DC circuit decision finding that Congress has a right to subpoena Donald Trump’s financial records, and discovers that it has no basis in what could broadly be described as “law:”
There’s nothing in the text or legislative history of the relevant statute, or in SCOTUS precedent, or in constitutional law, that supports the Trump administration’s position in this case. Yet somehow, a Trump-appointed judge ruled in Trump’s favor. What could explain this apparently inexplicable development?
Lederman emphasizes that one possible explanation should be considered out of bounds:
I would hate to insinuate anything like that, so instead I’ll say it straight out: Rao is dissenting despite the absence of any quarter-way plausible legal basis for her dissent, because she is Federalist Society hack, who was put on the federal judiciary to rule in favor of Republicans and against Democrats in any case of political significance.
Lederman’s fervent institutionalist faith is a symptom of what is essentially just another form of American exceptionalism. Suppose a Putin-appointed judge ruled in Putin’s favor in a case that was crucial to Putin’s political interests, despite the absence of any non-frivolous legal argument for doing so. Would Lederman think that was because the judge was making a good-faith mistake, as opposed to ruling the way Putin wanted because that’s what a Putin-appointed judge has been appointed to do?
The only difference in this regard between the American and Russian legal systems at the moment is that all the judges don’t yet belong to Trump. If the SCOTUS issues an emergency stay of the DC circuit’s ruling, thereby in all likelihood rendering it moot prior to next November’s election, I would hope that Lederman and others similarly situated would begin to reconsider their apparently unbounded faith in the independence of the American federal judiciary.
Carriere in comments:
I read Rao’s dissent this morning. It was incomprehensible, shockingly results-oriented, and an obvious attempt by her to jump the queue for the next SCOTUS vacancy. It made me absolutely furious to think that I chose law as my career when this absolute fourth-rate hack, this charlatan, this person who should bury her face in shame, has ascended the legal summit and will be fawned over as a federal judge, called “your Honor,” for the rest of her life. Elite law students will jump at the chance to clerk for her and will then pollinate her insidious views throughout the rest of the judiciary when they inevitably are made judges at the age of 29 by the next Republican administration. Normal, non-MAGA lawyers will scrape and bow to sit next to her at cocktail parties and she’ll be feted as some semi-divine figure when the only kind of work she is capable of putting out is this historically and constitutionally illiterate hogwash.
It was also a reminder that asymmetrical polarization is happening all over the political spectrum. I clerked for a “liberal” judge back in the day. If a Democratic administration made the arguments the Trump administration made to my judge, the lawyers would have been laughed out of Court. If the entire Circuit sat en banc, the position wouldn’t have gotten one single vote. But because the fucking Trump administration said it, every single Thomas and O’Kavanaugh and Alito clerk will dutifully enshrine it into the FedSoc constitution–apparently the only constitution that matters anymore. The only thing that separates these partisans in robes from the true believers in that proverbial diner is a slightly fancier vocabulary and an ability to cloak their racism in screeds about the VRA. At the bottom, the likes of Rao and Kavanaugh and all the rest hate us, hate us, and will twist any opinion or invent any doctrine to make us suffer.
Trump corrupts everything he touches, but that is only because everyone and everything in those circles is so eager to be corrupted.