As I have watched the executive and legislative process of our federal government these last three years, it occurred to me that our forefathers’ decision to have three distinct branches of government is really eroding. The House of Representatives will do what it can to block the president right now after winning control of that body in 2018. The Senate, the more slowly changed body, still supports whatever the president wants, be it dismissal of charges of impeachment or even the calling of witnesses to the investigation itself.

The president then kills bills with his veto power and the House cannot override it. So those two bodies of the three branches are horribly twisted.

That leaves the third branch, the judiciary. Unlike the executive and legislative branches, where there is no lower level, in the case of the judiciary, there are multiple levels before a case comes to the top. Often cases of meaningful substance are decided in those lower courts and are never heard by the Supreme Court. Thus, these lower court rulings are the law of the land.

So what control of the judiciary do the other two branches have? Not much once the original appointment is made. The president nominates these justices for both the Supreme Court and the lower courts. Then the ultimate confirmation is with the Senate. And then they serve for life! Consequently, the justices far outlast those who appoint and confirm them.

I find most people have little understanding of our courts on the federal level. Sure, we more fully understand state courts and their types of cases, be it criminal, divorce, adoption, or civil matters such as personal injury actions. But what the federal courts do is quite a bit different. Yes, there are federal crimes, federal tax evasion, and major violations of the federal laws such as patent and copyrights. But federal issues are often with greater national consequence to the public, not just the parties involved.

President Trump has had a field day nominating candidates for the courts, knowing that his Republican Senate will almost certainly confirm his choices. Trump has nominated 200 new federal judges and 53 appeals court justices. The 53 appeals court nominees surpassed in three years what President Obama did in eight. Three appeals courts have flipped to having a majority of judges named by Republican presidents. Then add to that his two nominees of impeccably conservative credentials to the Supreme Court.

Few of our citizens could name the nine justices now presiding, let alone tell who nominated them. Some have been appointed so long ago that we all forget. But never let it be said that the federal courts do not reflect presidential impact.

A quick review of the nine: Samuel Alito was confirmed in 1990, nominated by George H.W. Bush. Clarence Thomas, the same in 1991. Then Bill Clinton chose Ruth Bader Ginsburg in 1993 and Steven Breyer in 1994. The most interesting selection was for the Chief Justice when George W. Bush nominated John Roberts in 2003. Then the fight for conservative/liberal sway began in earnest. President Obama got Sonia Sotomayor in 2009 and Elena Kagan in 2010. Trump then evened the count with his nomination of Neil Gorsuch in 2017 and then Brett Kavanaugh in 2018 confirmed by a mere 50-48 vote.

An interesting observation, is that four of these justices graduated from Yale Law School, four from Harvard, and Ginsburg from Columbia, though she attended Harvard Law for a while. Does this represent our nation? All nine from two or three Ivy League Schools?

Regardless of their geographic preponderance, the political divide is large enough for the whole nation. Five were appointed by Republican presidents and four by Democrats. So the conservatives should win every time.

Well, Mr. Trump, this has not proven to be true in so many cases. Eisenhower appointed Earl Warren as a most conservative justice in the 1950’s and Warren led the court in the most eye-opening, quite liberal, decisions about segregation, abortion, and other heavy national interests.

Now we have a president who dislikes gays, minorities, alien workers, and women wanting abortions. All of these issues have arisen in the last month. Louisiana’s restrictive law curbing abortion was struck down. A challenge to Obama’s DACA was denied. And then job discrimination was held to include those of different sexual persuasions. So there was victory for women’s rights, children of foreign birth living in the United State, and the LGBTQ generation. How could this happen with this court?

In the DACA opinion and again in the opinion striking down of a Louisiana law severely limiting abortions, Justice Roberts left the conservatives and joined the four other justices, much to the surprise of many legal scholars. It would seem he voted his conscience and previous decisions of the Court rather than Republican lines.

Even stranger was the vote of Gorsuch in the suit brought by the LGBTQ to recognize that discrimination of a person because of his or her sexual preference is a clear violation of the equal protection in the workplace. In fact, Gorsuch wrote that opinion, giving those equal rights to the LGBTQ community. Pundits were shaking their heads how this man could leave the president who had put him there in the first place.

Live and learn executive branch. Sometimes your attempts to control that third branch just don’t work out. Unless there is a death, Ginsburg and Breyer will hang in there to see if they can outlast Trump’s presidency. While Trump’s biggest achievement in office has been the conservative transformation of the federal judiciary, the Supreme Court in two weeks has shown that it isn’t totally in the pocket of the political right. It would appear that this time Roberts, Gorsuch, and the federal court systems will play a rather key role in the 2020 elections.

Dennis Marek can be contacted through the Daily Journal at editors@daily-journal.com or through his personal email at dmarek@amb-ltd.com.

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