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ERIC C.

CHRISTIANSEN

TRUMPS JUDGES:
THE UNITED STATES JUDICIARY AND THE
TRUMP PRESIDENCY

Universitat de Valncia
THURSDAY, APRIL 30, 2017
PROFESSOR ERIC C. CHRISTIANSEN
Professor of Law, Golden Gate University (San Francisco, California USA)
Visiting Professor of Law, Faculty of Constitutional Rights, Universidad de Valencia
2016-17 Senior Fulbright Research and Teaching Scholar in Spain

THE AMERICAN JUDICIARY IN THE TRUMP ERA


1) INTRODUCTION
2) THREE POTENTIAL AREAS OF IMPACT & CONCERN
a. Federal Judges & Justices of the Supreme Court
(including Justice Gorsuch?)
b. US Department of Justice & the Solicitor General
c. Independence and Legitimacy of the Judiciary
3) CONCLUSION
4) QUESTIONS, COMMENTS, AND MORE FUN
INTRODUCTION

How to have a rational conversation about the unexpected result of an


polarizing election cycle and the inexplicable presidential actions that seem
outside the bounds of American political norms?
FEW THINGS WE ARE NOT DISCUSSING
(IN THE CORE PRESENTATION)

Validity of Trumps Election


popular loss by 3 million votes but Electoral College victory
Likelihood of Trumps Removal from Office
Impeachment is a very rare and political (rather than legal)
process
Unclear Ties between Trump and the Russian
Government
now + during his campaign; unclear what evidence exists or
will be known

BIAS?
MY QUESTIONS

At the end of Trumps term as President


(January 2021?), how will the federal
judiciary be different?

In the year 2060, when the last of the
Supreme Court Justices appointed by
Trump retires or dies, what will be their
legacy on the Court and in the law?
THREE AREAS OF INQUIRY
POTENTIAL SIGNIFICANT IMPACT, INFLUENCE OR HARM

1) The Federal Judges and Justices of the U.S. Supreme Court


51 judiciaries and diffuse constitutional judicial review
power
The Gorsuch Nomination
2) The Work of the Department of Justice and Solicitor
General
What is the DOJ? What is the role of the SG?
3) Independence and Popular Legitimacy of the U.S. Judiciary
THE FEDERAL JUDGES
AND JUSTICES OF THE U.S. SUPREME COURT

VACANCIES
Appointment power generally: 118 of 900 federal
[the President] shall have the Power judgeships
and by and with the Advice and Consent 99 District Court Judges (of
of the Senate, shall appoint Judges 701)
18 Courts of Appeal Judges
of the supreme Court [and all other
(of 178)
federal courts]
1 Supreme Court Justice
Current federal court vacancies `[Judges] both of the supreme and
inferior Courts, shall hold their
Nomination & Confirmation process
Offices during good Behavior, and
shall receive Compensation not to
Legal Independence of Judges
be diminished [while] in Office
U.S. Constitution, II.2.2
THE SUPREME COURT OF THE UNITED STATES

ONLY President Trump judicial


nominee so far
Neil M. Gorsuch
Associate Justice of the Supreme
Court
Confirmation Hearings:
MARCH 21-23
Senate Judiciary Committee Vote:
APRIL 3
Senate Confirmation Vote:
APRIL 7
ORIGINALIST
To apply the law as it is, focusing
backward, not forward, and looking to text,
structure, and history to decide what a
reasonable reader at the time of [drafting]
would have understood the law to be.

STRENGTHS: Rule of Law, Independence


CONCERNS:
pro-business, limit privacy/autonomy
rights, robust religious liberty, limit
equality / civil rights

Needs 60 votes under Senate rules (or 50


under Con)

PREDICTION?
Judge Neil McGill
Gorsuch
THE WORK OF THE DEPARTMENT OF JUSTICE AND SOLICITOR
GENERAL

EXECUTIVE BRANCH AGENCY AND OFFICIALS


Attorney General Jeff Sessions
41 most important officials are Presidential Appointees
$27 BILLION (FBI, fed prisons, Inspector General, civil rights)
e.g., Civil Rights Division
Q: What would be your priorities? ($162M)

SOLICITOR GENERAL
Administrations advocate: choose cases, choose position, etc
ex.s Obama and same-sex marriage Trump and transgender
discrimination
Tenth Justice
THE WORK OF THE DEPARTMENT OF JUSTICE AND SOLICITOR GENERAL
SPECULATING ON LITIGATION PRIORITIES

ROBUST DEFENSE RELIGIOUS LIBERTY


ASSERTION OF STATES RIGHTS
(unclear response to progressive states)
LIMITED DEFENSE OF FEDERAL REGULATIONS
(environment, banking practices, health & human safety, etc)

VIGOROUS DEFENSE OF QUESTIONABLE ADMINSTRATIVE


ACTIONS AND CONGRESSIONAL LAWS
INDEPENDENCE AND POPULAR LEGITIMACY
OF THE FEDERAL JUDICIARY

Trump Administration is
expected to be the most
litigated presidency in
history.
Unconstitutional orders
Impatience with legally-
required methods
Lack of government
experience
Minimal mandate
Strong, funded opposition for
civil society organizations:
ACLU and other legal groups
INDEPENDENCE AND POPULAR LEGITIMACY
OF THE U.S. JUDICIARY

UNIQUE FEATURES OF CONFLICT BETWEEN ANY PRESIDENT & JUDICIARY


Courts cannot choose their cases (passive)
Judiciary cannot enforce its own orders (needs executive branch).
Appointment power + Independence once appointed = ?

UNIQUE FEATURES OF CONFLICT BETWEEN TRUMP & JUDICIARY


WHY matters (courts review motives, Trump doesnt hide his).
Accostumed to settlement option from private litigation.
Already hostile relationship with judges: Trump University case, Immigration
order.
PREDICTIONS

Trumps actions (and related Congressional actions) will be challenged


frequently.
The Judiciary will (continue to) be the state institution that most often
and most effectively hinders the Trump agenda.
Trumps own judicial appointments will be more sympathetic to his goals
but less flexible on the law and the Constitution than he will want.
Trumps attacks on the federal judiciary will increase.
The Supreme Court and Judiciary will remain respected (outside Trump
loyalists) but suffer some delegitimacy over-all because of his attacks.
CONCLUSION
This is a dangerous time for the American judiciary
The Rule of Law and legitimacy of multiple
U.S. institutions are being sorely tested.
Potential of global impact
weaken civil norms related to judicial Independence?
weaken constitutionalism in developed West?
change the rules of political engagement?
empower progressive movements?
HOWEVER.
THE AMERICAN JUDICIARY IN THE TRUMP ERA

QUESTIONS & DISCUSSION

Professor Eric C. Christiansen * echristiansen@ggu.edu

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