Judges & Judicial Process – Page 17 – Marquette University Law School Faculty Blog

Donald Trump and the Belief in Law

Post author:David R. Papke
Post published:June 8, 2016
Post category:Judges & Judicial Process Political Processes & Rhetoric Public Uncategorized

Among Donald Trump’s many provocative statements, his recent claims that a specific federal judge with a “Mexican heritage” and Muslim judges in general would be biased against him have apparently struck a special chord. Even Trump’s fellow Republicans have been highly critical. Senator Mitch McConnell of Kentucky, for example, completed disavowed Trump’s claims, noting “All of us come here from somewhere else.”

Most of the criticisms deplore Trump’s lack of respect for American diversity and also his racism. House Speaker Paul Ryan said in this regard that Trump’s comments amounted to “textbook racism.” However, I wonder if some part of the strong negative reaction also relates to Trump’s challenge to an American belief in law and in the courts’ ability to apply law in a fair and objective manner.

I have argued in several of my writings that a belief in law should be recognized as an important tenet of American ideology, with “ideology” being understood as a normative expression of dominant beliefs rather than as a manipulative falsehood. Americans have traditionally believed in law, which is presumably understandable, made in public, and useful for one and all. In addition, law is supposed to be applied without bias, and independent courts in particular are expected to adjudicate disputes fairly and to decide similar cases in similar ways. “Ideologues” — that is, believers in and promoters of this ideology– routinely assure us that Americans live by the rule of law more so than any other nation.

Insights Offered on Working in the White House and Judicial Nomination Gridlock

Post author:Alan J. Borsuk
Post published:April 14, 2016
Post category:Judges & Judicial Process President & Executive Branch Public Sports & Law

It was three years from the time Brett Kavanaugh was nominated by President George W. Bush to be a federal appeals court judge to the time when his nomination was approved in 2006. That certainly gave him a first-hand look at the difficulties of getting a federal judicial nominee approved by the U.S. Senate.

“It’s been a mess for decades,” Kavanaugh, who serves on the U.S. Court of Appeals for the District of Columbia Circuit, said Wednesday during an “On the Issues with Mike Gousha” program at Marquette Law School. Republicans have held up appointments by Democratic presidents. Democrats have help up appointments by Republican presidents.

Kavanaugh would not comment specifically on the current high-profile part of this recurring “mess,” in which President Barrack Obama’s nomination of Judge Merrick Garland to the Supreme Court has met a wall of Republican opposition in the Senate.

But Kavanaugh repeated a position he has held for years, one that was in line with the policy Bush advocated when he was president: “There really should be rules of the road agreed on by both parties ahead of time to fix the process. “ Kavanaugh said Bush, during his presidency, had suggested a policy in which nominations would get a vote in the Senate within 180 days. Kavanaugh supported that idea.

Limited Terms for Justices Worth Considering, Appeals Judge Says in Hallows Lecture

Post author:Alan J. Borsuk
Post published:March 8, 2016
Post category:Federal Law & Legal System Judges & Judicial Process Public Speakers at Marquette U.S. Supreme Court

Judge Albert Diaz began his E. Harold Hallows Lecture at Marquette Law School last week by saying that he was going to offer thoughts on life tenure for federal judges ”which I’m pretty confident do not reflect the views of many, if not all, of my judicial colleagues.”

But Diaz, a judge since 2010 on the U.S. Court of Appeals for the Fourth Circuit, thought the ideas he presented to be worth considering, especially at a time when concerns about the U.S. Supreme Court, including how justices are appointed, are getting so much attention.

In his Eckstein Hall lecture, Diaz outlined arguments for and against both life tenure for federal judges and election of judges. He traced the debate back to the U.S. constitutional convention in 1787 and the opposing views for and against life tenure. The former prevailed, of course.

“The act of judging is not for the faint of heart,” Diaz said. “Judging is a human endeavor” and decisions are “not always free from taint.” But it is difficult to decide what “on the front end,” i.e., in determining who will be a judge, would best minimize the chances of tainted judicial work.