September 16, 2022

Judicial Decisions Should Be Based on Law, Not Politics

Russ Feingold President

Our judiciary is meant to be one of our Constitution’s and country’s safeguards for preserving democracy and the rule of law. Judges are supposed to be bound by the Constitution and are expected to be objective and driven by sound legal reasoning, distinguishing them from elected officials who identify with a party and a partisan agenda. When judges no longer see this as their responsibility, the rule of law is under threat. And that’s what we are seeing today.  

Former President Trump and Senator McConnell prioritized the nomination and confirmation of federal judges, with a consistent preference for ideologues who took their partisan agenda with them to the bench. We’re now seeing the impact of this, with an alarming disregard for the rule of law by some judges nominated by Trump.  

The packed Supreme Court is the ultimate example of the harm done when justices view cases through a partisan lens and decide cases with a partisan agenda. We end up with decisions like Dobbs and Bruen, untethered from precedent and sound legal reasoning. The public’s confidence in the Supreme Court is tumbling in reaction to the Court’s increasingly partisan bent.  

But this goes beyond the Supreme Court. Consider U.S. District Court Judge Aileen Cannon’s recent decision to temporarily stop the Department of Justice’s criminal investigation into former president Trump. A decision divorced from sound legal reasoning, and one seemingly inspired first and foremost by partisan objectives.  

Similarly, consider Judge Reed O’Connor, a federal judge in Texas, whose recent ruling in Braidwood Management v. Becerra, distorted religious freedom, condoned blatant discrimination against LGBTQ individuals, and threatens the availability of preventative healthcare for some of the most vulnerable among us. This decision follows similar distortions of the First Amendment by the packed Supreme Court.  

The judiciary is supposed to be apolitical, making it inherently distinct from the other two branches of government. Increasingly, the federal judiciary looks more and more like a third political branch. Regardless of which side of the aisle you prefer, this trend of members of the judiciary placing their ideological or partisan preferences above the rule of law should be deeply alarming. It risks sending our entire federal judiciary into the same legitimacy crisis as the Supreme Court.  

Our courts are not owed unwavering deference. Deference is a response to judicial restraint, responsibility, and sound legal reasoning. Judges earn deference. They are not owed it merely because they put on a black robe and hold a gavel in their hand. When judges stray from the rule of law, they should be called out, for the sake of our democracy and for the preservation of the rule of law.  

This trend is all the more reason that ACS is prioritizing the recruitment of diverse, qualified candidates for the federal bench. We need to fill as many federal court vacancies as we can with judges who are committed to the rule of law, to the Constitution, and to vindicating our fundamental rights. We applaud the U.S. Senate, which returned to session this month and immediately prioritized the confirmation of federal court judges. We hope the Senate will keep up this pace of confirmations through the end of the year.  



Importance of the Courts, Judging (and Judicial Nominations), Judicial Diversity, Judicial Independence, Judicial Nominations, Judicial Nominations, Judicial Selection, Supreme Court, Supreme Court Reform