Defenders of President Trump will often acknowledge his faults, but then point to his selection of judges. I’ve never been impressed by that argument, as I prefer good judges to “conservative” judges. Most of all, I prefer judges that do not protect corrupt officials that appointed them. And Trump seems to be falling short on even that basic requirement.
After the Warren Harding scandals, Congress passed a law giving lawmakers the authority to investigate anyone’s tax return, in order to reduce corruption in the executive branch. President Trump is in clear violation of that law, refusing to turn over his tax returns to Congress. So how are Trump-appointed judges responding? Here’s the Washington Post:
Another judge on the D.C. district court, Trevor McFadden, a Trump transition volunteer and Trump DOJ official before Trump appointed him to the court, has been similarly unhurried.
The House Ways & Means committee filed a lawsuit on July 2 requiring Trump to release his tax returns. The law is unequivocal; it says tax officials “shall” provide returns to the committee on request. But McFadden, who previously ruled against the House over Trump’s use of emergency funds for the border wall, still hasn’t heard arguments in the tax matter, 139 days after the suit was filed. Though not dismissing the case, he rejected the House’s request to expedite it.
Compare that with a similar suit over Trump’s taxes filed in the same court by the House Oversight Committee. Judge Amit Mehta (an Obama appointee) ruled in that case 28 days after it was filed.
McFadden is young and ambitious, and he benefits from not antagonizing Trump. Delay could be the safest option — because ruling in Trump’s favor would require some dubious legal reasoning.
At this writing, Leon has yet to dismiss the now-meaningless suit. Why? My sources offer two explanations — neither benign. He may be keeping the case active so he’ll be assigned any other impeachment-related cases when filed. Or Leon, who led House GOP investigations of President Bill Clinton before George W. Bush appointed him to the court, recognizes the law does not support Trump’s monarchical view of absolute immunity from congressional inquiry — and therefore the best way to help Trump is to run out the clock on impeachment.
READER COMMENTS
Loquitur Veritatem
Nov 19 2019 at 11:53am
Conservatism being the preservation of those things that have merit and the rejection of harmful change, we very much need conservative judges. I’m being provocative because you are using conservative to mean something like partisan (in a particular direction). And I hate to see the word debased in that way.
Scott Sumner
Nov 19 2019 at 1:03pm
Liberals also support the preservation of things that have merit and the rejection of harmful change.
Alan Goldhammer
Nov 19 2019 at 12:39pm
The slow pace of action on the income tax return case is a total joke. The law is clear and even a lowly municipal court judge could make the correct ruling that the President must turn over his tax returns to the Ways and Means Committee.
President’s have the right to choose their own judicial appointees. As long as the appointees are qualified they should be confirmed. Personally I think Kavanaugh will be a decent justice, though I’m somewhat conflicted by what may or may not have occurred in the high school incident in question. Obama erred by not be aggressive and filling open slots quickly enough. He also had the right for Merrick Garland to have an up 0r down vote to fill Justice Scalia’s spot on the Supreme Court.
gdp
Nov 20 2019 at 4:31am
Obama did not “erred by not be aggressive and filling open slots quickly enough”; Mitch McConnell quite openly, deliberately, and blatantly “slow-walked” each and every one of Obama’s judicial appointees until the clock ran out, in an attempt to ensure that _none_ of Obama’s appointees would _ever_ reach a Bench — and McConnell was quite smugly proud of doing so.
McConnell’s obstruction of the Merrick Garland appointment was thus only the tip of the iceberg; it was McConnell’s policy to obstruct _all_ of Obama’s judicial appointees:
https://www.politico.com/story/2016/07/mitch-mcconnell-judges-225455
So it is not fair to blame Obama on this point; McConnell’s deliberate obstruction of _all_ of Obama’s judicial appointees was so blatant as to cross over from mere nonfeasance in office to at least misfeasance, and arguably even malfeasance.
TMC
Nov 20 2019 at 5:29pm
From your article: “In response, Republicans toss figures favorable to Obama right back at Democrats. So far in his presidency, Obama has had 329 of his judicial nominees confirmed, compared with 312 for Bush at the same point in his final year in the White House, according to the Senate Judiciary Committee. ”
Obama had more openings, but left many of them without any nomination at all.
Philo
Nov 19 2019 at 2:10pm
Thanks to Trump, instead of a federal judiciary consisting overwhelmingly of left-wing political hacks we will have a balance of left- and right-wing political hacks. That’s not a judiciary of “judges who are rational, unbiased, dispassionate and non-corrupt,” but it is better than it would have been if Hillary Clinton had been elected. Thank you, American voters (in the swing states), for giving us President Trump!
TMC
Nov 19 2019 at 2:37pm
eh. Looks like the ‘problem’ is that after 7 weeks, they suddenly want the finding expedited. The actual case is going like expected.
https://www.law.com/nationallawjournal/2019/09/05/after-speedy-subpoena-cases-trump-tax-disputes-linger/
zeke5123
Nov 19 2019 at 3:13pm
The law is far from clear. The law is general but the W&M is looking to apply it to the President. There are separation of powers questions here.
Moreover, there are questions whether the “shall” language is absolute. Indeed, it seems the statute itself envisaged a hyper-private review of the returns (i.e., closed session). That seems entirely at odds with a highly visible review of the President’s return initiated due to political reasons. The returns will be effectively leaked minutes after the closed session ends. So, does the “shall” really mean “shall” when effectuating the “shall” seems at cross-purpose with the statute?
One problem non-lawyers always make is taking the words too much at face value and assuming there is a “clear violation.” I acknowledge that you might ultimately be proved out by opinions from the court, but it isn’t as clear as you think and assuming the judge is acting in bad-faith without evidence of bad-faith is incredibly poor form.
Robert EV
Nov 19 2019 at 10:42pm
What powers apply to a person’s taxes? They have absolutely no bearing whatsoever on the running of government.
Scott Sumner
Nov 20 2019 at 12:44pm
I have little sympathy for the conservative view that presidents are above the law, especially given that people like Kavanaugh rejected the view when Bill Clinton held the presidency, and then changed his mind after Bush took office.
One conservative take is that Congress can always impeach the president if he obstructs justice, but then for some odd reason they only favor this option when Democrats hold the office.
TMC
Nov 20 2019 at 5:21pm
I’m not aware of any conservative who thinks the President is above the law. There does exist a separation of powers though, and for good reason. As for impeachment, not one Democrat has been able to answer what law Trump has broken.
Mark Z
Nov 19 2019 at 10:18pm
I think this argument tends to have the Supreme Court mostly in mind, and I think with Gorsuch, there’s a strong argument (and a case to be made that it’s far more important than the lower courts). Not only on ‘conservative’ issues like economic regulation, but even on matters like criminal justice, he’s arguably more civil-libertarian than most of the liberal justices. Kavanagh is somewhat less impressive.
And I think this “I want good judges, not conservative/liberal judges” is an empty criticism. Conservatives and liberals tend to have different and mutually exclusive definitions of what a good judge is. There isn’t a neutral definition of a ‘good judge.’ There may be a neutral, non-partisan (but not exhaustive) definition of a bad judge, but not really a good judge. There are judges who sincerely aspire to be, and are regarded by many intelligent people and experts as, “rational, unbiased, and dispassionate” who consistently reach opposite decisions.
Scott Sumner
Nov 20 2019 at 12:46pm
So you think the 5-4 decision in the 2000 election was based on principles? Exactly what principles were at stake? States rights? Didn’t all 9 justices rule against their normal view on states rights?
Justin
Nov 21 2019 at 10:39am
I don’t think your view is persuasive for anyone who has a serious stake in the outcome of particular controversies.
Consider that religious liberty is in direct conflict with the rights of the LGBT community. There is simply no outcome that would satisfy both groups, and no way to persuade the entirety of one side to adopt the position of the other. Moreover, no judge can be ‘unbiased’ in such a situation: he or she must come down on the side of one group and oppose the other.
For people one either side of such a conflict, the competence of the judge is not only less important than which team the judge is on, but almost completely irrelevant.
It doesn’t directly impact your life whether or not a particular judge forces a President to provide their tax returns.
However, if you find yourselves denied equal treatment because you are LGBT, that very much does impact your life. In a similar way, if the law forces you to chose between your faith and your business, that also impacts your life in a very serious way.
Since unbiased judges don’t exist, if you care about specific outcomes you will be primarily concerned with having judges biased in favor of your team.
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