Monday, February 6, 2017

Deadly serious: Trump calls out 'so-called judge'

President Trump referred to the judge who halted his immigration ban as a "so-called judge." There are two different ways that an executive official can criticize a federal court.
One is to criticize the court’s decisions. That is, to say that the court got the law wrong, got the facts wrong, or generally didn’t rule the right way. Every government decision to appeal a federal court ruling entails saying that the court got something wrong. 
A second way is to criticize the court’s authority. That is, to say that the court didn’t or shouldn’t have the power to decide the case at all. Again, these criticisms can take different technical forms, such as to claim a lack of jurisdiction, an improper appointment, etc. This form of criticism is much less common. After all, federal courts still have authority in many, even most, of the cases they decide, even when they decide them wrongly.  
Will Baude an assistant professor at the University of Chicago Law School wrote in the Washington Post: 
But this distinction is why the epithet “so-called” in “so-called judge” raises such a red flag. Judge Robart was appointed with the advice and consent of the Senate in 2004, and I bet there is a commission on the wall of his chambers that proves that he has been vested with the judicial power. But to call him a “so-called” judge is to hint that he is not really a judge, that he lacks judicial power. It is just a hint, but it flirts with a deadly serious issue.
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1 comment:

mrlrichshs said...

Is he aware of Marbury v. Madison?

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