Sometimes the chutzpah of Democratic accusations against Republicans takes the breath away.
They claim to fear that the nominations of Pam Bondi to head the Justice Department and Kash Patel to lead the FBI show President-elect Donald Trump intends to undermine the independence and impartiality of these agencies and, more broadly, of the justice system.
The claim is almost certainly exaggerated and probably outright false. But more than that, it is also projection by leftists, accusing conservatives once again of doing precisely what they themselves routinely do. Democrats have been waging lawfare against Trump at the federal and state levels for years, and their efforts are falling apart for a variety of reasons, chiefly that they were meritless and thoroughly political.
Democrats’ hypocrisy is not revealed, however, only in these most egregious examples of them fashioning the judicial system into a political weapon. It saturates every aspect of their approach to the third branch of government.
Their party and ideology can be partly defined by the fact that they do not simply accept a politicized judicial system but positively insist that it be politicized in their favor.
At the very moment Democrats are complaining of political taint on judicial impartiality, their own sympathetic judges, one nominated by President Bill Clinton and one nominated by President Barack Obama, have reversed earlier promises and “unretired” precisely to keep their slots left-liberal ideologically and to ensure their departures do not create vacancies that an incoming Republican president could fill.
Sen. Mitch McConnell (R-KY), the retiring Republican leader, accused U.S. District Judges Algernon Marbley of Ohio and Max Cogburn of North Carolina of acting to “put a political finger on the scale” of justice. He is right.
We’ve seen Democrats imposing political and ideological litmus tests on federal judges for decades. They don’t want originalist or textualist justices confirmed to the Supreme Court, for example, because they stick to the proper and undistorted meaning of the Constitution and statutes instead of bending them to fit their leftist beliefs. That is why Democrats demand to know which way nominees would vote on politically controversial issues.
If you believe in the convenient fantasy of a “living Constitution,” you argue that justices should change laws by assessing whether they would be better if they meant something other than the drafters intended. That is what Democrats do and Republicans oppose.
It’s not that judge-made law is inherently a bad thing. That is what common law is — a legal framework created by court decisions, the precedents set by centuries of jurisprudence. It is, by the by, one of the lamentable aspects of today’s political and legal environment that so much common law has been nullified by statutes passed by hyperactive legislators who itch to overthrow tradition.
But judge-made law can work only in societies bound together by a common culture. When common law was being created, or accumulated, there were initially no political parties, and even when parties came into existence, Whigs and Tories did not disagree so wildly that there could, for example, be fundamental disagreement over whether theft or illegal immigration was right or wrong.
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We have largely lost our shared culture, and today, disagreements about the fundamentals of the law are central to political and ideological debate. In such circumstances, political parties inevitably fight over who should sit in judgment and what each given justice’s beliefs are. Personnel is policy, after all.
Whether or not one regards the substitution of political preferences and ideology for precedent and tradition, Democrats cannot possibly argue that they are a party that believes in impartiality and a nonpolitical judiciary.