In Defense of Trump’s Judicial Nominees: A Response to “Trump’s Crazy Choices for the Courts”

Former Judge Scheindlin’s screed in the New York Times last Friday maligns President Trump’s appointments to the lower federal courts on a variety of pretexts, with a common theme that the nominees she targets do not share her liberal worldview. Judge Scheindlin’s view of the judiciary is inimical to Chief Justice Roberts’ often-quoted remark during his confirmation hearing that a judge’s “job is to call balls and strikes and not to pitch or bat.” As Alexander Hamilton noted in the Federalist 78, if judges “exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body.”

Judge Scheindlin’s attacks indeed reflect her openly-espoused view that judges should be nominated based upon their policy views and enact those preferences as law through their rulings once confirmed. Jeffrey Toobin, Rights and Wrongs, The New Yorker, May 27, 2013 (“What I really like to do is write opinions . . . There you get to do what you think is right, what you believe in. You’re pushing the margins of the envelope, being willing to be creative.”); and Benjamin Weisner, Departing Judge Offers Blunt Defense, The New York Times, May 2, 2016. (“I’m not a person who was ever enamored of power . . . but I like to exercise it in the public good.”) According to Judge Scheindlin, an unelected liberal judge should exercise the power she begrudges the political branches to “push the envelope” as a one-woman legislature. Upon retirement, she should savage conservative nominees committed to judicial restraint on the Editorial Page of the NYT.

Although Judge Scheindlin claims that President Trump’s Nominees “do not reflect mainstream values,” her own record reflects a pattern of reversal by appellate courts when she has attempted to shape public policy from the bench. After the Second Circuit Court of Appeals ruled that she should no longer preside over a major “stop and frisk” case, Judge Scheindlin retired in disgrace while claiming that she wanted to perform “even more good works than I could accomplish here.” (Whereupon she decamped to a Wall Street law firm where she undoubtedly bills over $1000 per hour.) As the NYT itself notes, it is “unusual” for federal judges to retire in such a manner. Benjamin Weisner, Shira Scheindlin . . . Will Step Down, The New York Times, March 23, 2016. Even Judge Scheindlin’s apologists explain that her reversal rate is indicative that, although mistaken, she is “certain of what the law should be—not just what it is.” Mark Hamblett, Stop and Frisk Judge Relishes her Independence, New York Law Journal, May 20, 2013.

Judge Scheindlin interpreted the First Amendment in a strikingly results-oriented fashion designed to shade (if not twist) constitutional interpretation to fit her own policy preferences; presided over several botched trials of John Gotti Jr.; was reversed several times by the Second Circuit for ruling in favor of terrorists, both foreign and domestic; condoned the abuse of diplomatic immunity; and instituted an extravagant regime of electronic discovery obligations that increase, by orders of magnitude, the costs and risks of federal litigation. Most strikingly, she issued twice as many written suppression orders as her next most lenient colleague. (Such rulings effectively end criminal prosecutions against guilty defendants based upon technicalities.) The administration should be commended for nominating judges who will exercise judicial restraint rather than imposing Judge Scheindlin’s notion of “mainstream values” through judicial fiat.

Judge Scheindlin’s article mentions several Supreme Court cases that were clearly wrongly decided, but inexplicably criticizes a nominee for his refusal to “adhere to precedent if they believe a case was wrongly decided.” Judge Scheindlin does not explain why, to paraphrase the late Justice Jackson, a court should be wrong today because it was wrong yesterday.

Judge Scheindlin’s attacks on the nominees are particularly disappointing given her own reactions to criticism she received after unpopular rulings. See e.g. Larry Neumeister, NY “Frisk” Judge Calls Criticism Below the Belt, Associated Press, May 19, 2013. Fortunately, Trump’s nominees, and not Judge Scheindlin, will decide the weighty issues of our time, as her best decision while a federal judge, quite frankly, was to retire last year.