One of the features of the first Trump administration was the endless litigation that was intended to throw sand in the gears of the White House. Much of it was irrational and did not hold up under appeal, but that was not the point. The goal was to kill the administration with a thousand cuts. We are seeing a replay of this in round two, but the administration seems prepared for it. There is both a legal strategy and a public relations strategy for dealing with the lawfare.
This lawfare is possible due to one of the many carryovers from the post-Cold War period in which the Washington class was allowed to run wild. The inferior courts where this lawfare is being waged are packed with friends of Washington. Half of the judges were nominated by Republicans and the other half by Democrats, but all were on the list because they are friends of the Blob. Time and again we see that the judges issuing restraining orders on the admin have family in the Blob.
One result of this is the ground floor of the federal judiciary is now the first line of defense for the Blob. Anyone challenging the regulatory state knows they first must make it through this minefield. It is one way to make the cost of challenging the regulatory state prohibitive. Almost all litigation against the administrative state would fail at the first step and then go to appeal. For most potential litigants, dealing with the hyper-politicized district courts was cost prohibitive.
Mostly, the district courts have become a weird form of patronage. These judges come from good schools but were not great private practice attorneys. Most found their way into a federal prosecutor’s office, where they could make friends with the political class to angle for a position on the bench. Once on the bench, they could then lever that into jobs for friends and family in the Blob. District judges are one of the many gatekeepers for entry into the Blob.
Here is where you see the social aspect of managerialism. These judges do not have to be told to oppose the Trump admin. They just know it is their role because everyone they know hates Trump. Judge Boasberg is not defending what he has always claimed to oppose because he is a hypocrite. He is simply putting the welfare of his friends and family ahead of political concerns. He is operating from class consciousness and the class he is defending is the managerial class.
Of course, the court system has been a mess for a long time. The Supreme Court that decided Brown simply invented a new moral code to be imposed on the American people by the judiciary. The court that invented the right to buy contraceptives and abort your baby was doing the same thing. When Justice Kennedy wrote the majority opinion stating that the right to marry is a fundamental right, he did so not as a legal scholar or defender of the Constitution, but as a secular priest.
The judiciary as a priestly class is always a risk because in a liberal political order the law is the manifestation of general morality. One reason we have so many laws in public government versus private government is the morally right choice for every conceivable action must be written down so the shamans in the court system have something to point to when making their declarations. That and it is the only way to overcome the traditions of the people regarding public morality.
It is how in 1985, US District Court Judge Russell Clark began a terror campaign against the people of Missouri. He took over the Kansas City, Missouri School District, forcing the people to pay billions in taxes to underwrite his madman effort to create paradise on earth. This terror campaign was allowed to go on for a decade until the Supreme Court finally got around to ending it. Two billion dollars were spent, and thousands of lives were ruined by a single lunatic judge.
What the district court system has become is a way for the managerial class to impose its morality on the rest of us, via the court system. Since there are over six hundred district judges, there is no escaping them. Every state government must act in the shadow of what is, in effect, an ideological enforcer for the Blob. The district courts are now an ecclesiastical court for the purpose of heading off any signs of apostacy before they gain public support.
In the short term, the only remedy for the Trump administration is to fight this weird priesthood in the court and the court of public opinion. Congress could help by stripping some power from the district courts, but Republicans are useless, so no one should expect that to happen. Chief Judge Roberts could step in, but he is clearly blobbed up, so that is unlikely. His behavior in the Obamacare case made clear he acted under duress to change his position.
In the long run, the solution is to make the district court position temporary, so it loses its value in Washington. Doing a turn as a district judge should be viewed as a resume builder for someone on partner track at a big firm or maybe as a career builder for a lawyer who wants to build his own firm. District judges were supposed to handle mundane administrative tasks to free up the superior court. Making it a steppingstone position would restore that function.
In the even longer run, normalizing the judiciary means the end of ideology, because as long as we remain an ideological state, there will be people who see themselves as priests tasked with enforcing the moral claims of the ideology. The death of ideology means morality is once against rooted in the traditions and customs of the people and the law has a process for that. It is called precedent. Since before Code of Ur-Nammu, this has been the basis of the law and an orderly society.
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Being a judge has benefits beyond renumeration. When you are a judge, everyone in the legal (and regulatory) world will kiss your butt because of the power you hold.
I remeber a retired judge told me the worst thing about being retired is that no one returns your phone calls. That’s why these judges, state and federal, want to hang on to their positions like the pope.
it won’t be long before judges and lawyers are (mostly) replaced by AI. this is one area that is simple enough, and clear enough for current AI technology to be effective. this of course could also be gamed, but the evidence of this would be easy to spot (“hey, who changed this code?”) compared to a compromised human judge.
This already has happened with contract law. If both parties stipulate facts, which often happens anyhow, the software reviews case law, statutes, and common law and renders a decision. You are right that this will expand. The only problem that remains is assessing the credibility of witnesses and relatedly in the criminal context the right to face one’s accusers. But, yeah, the legal system as constituted isn’t long for it due to technology.
As a foreigner I find your constitution fascinating; no wonder people are devoted to studying it. (The contrast with the lame Declaration of Independence is striking.) I have several questions about it e.g. when the powers of a monarch were given to the president why were they typical of the powers of an early 17th century monarch rather than the much more restricted powers held by such a “tyrant” as George III? But to today’s business:- “Checks and balances” are all very well but what is the final check on (i) the custom of the Supreme Court choosing to act… Read more »
I often have recommended a Cloward-Piven strategy of eliminating the lower or “inferior” courts and so overwhelming the rest of the system it implodes. Congress actually can do this via elimination of districts court systems, which are not required by the Constitution, and/or defunding them. It appears the Administration has decided on a modified response that amounts to claiming to follow court orders, not doing so, and keeping the judges busy overseeing them. That’s smart even if the legislative method would be quicker.
Funny how we’re returning to a medieval conception of the law. The Blob relies on compurgation — you’re in the right because you pinkie swear you are, and you’ve got twelve guys who will swear they believe you. That’s the sole principle behind so much of the lawfare — some Apparatchik swears that Trump is a big poopy-head, and twelve of his buddies swear they believe him, and therefore it’s unconstitutional (for any and all values of “it”).
Perhaps trial by combat should be revisited?
Brilliant – the armor should be yellow
“Judge not, that you be not judged. 2 For with the judgment you pronounce you will be judged, and with the measure you use it will be measured to you. 3 Why do you see the speck that is in your brother’s eye, but do not notice the log that is in your own eye? “
It appears that most of these so-called “Judges” are not familiar with this passage.
Funny how Clown World is mirrored Marxism — not the Proletariat, but the Bourgeoisie, has achieved Revolutionary Class Consciousness. Instead of overthrowing the system, they’re using all their considerable power to maintain things exactly as they are. Everything Gramsci said about “hegemony” was right; he just got the hegemons’ identity wrong.
This is true. Karen’s Slush Fund, a/k/a USAID, was BioLeninism for upper middle class white women. The courts represent the same mindset. A client class of wealthy Karens railing against capitalism is a sight to behold.
I heard them called the Femocrats, or the Demonic Party. Heh!
Maybe Rush had it right.
Most of the lawyers who end up being judges start to get involved in politics early. They usually are donating time and money to parties and campaigns in their 20s. These types don’t want to be actual lawyers. They want to be in politics one way or the other and being a judge is one of those ways.
Successful lawyers either don’t want to be a judge or can’t afford it because they’re lifestyle now requires making $500k a year.
Federal districts can be eliminated and defunded by simple majority votes, but of course as you point out Republicans are perfectly fine with what is happening. It seems the Trump Administration has decided upon a mixed Cloward-Piven strategy, though, where it claims to follow an order, does not do so and proceeds to destroy things. This is a good tactic. What has been done to USAID, for example, is Cloward-Piven at its finest. It took decades to build the monster and it will be very difficult to reconstitute.
Blackpill: the Court system is a deliberate agonist to any attempt to change or restrict the Blob. The shysters can outlast any meaningful attempt at reform.
Whitepill: when we inevitably go bankrupt, the massive graft and fugazy of our legal system will get necessarily reformed. Things are not as bad as they look, because if we got rid of deadbeat illegals, pettifogging lawyers, NATO and the massive overhead of unproductive government, we could be rich again. The system survives despite almost every effort by the Blob to kill it.
Just one more example, as if any more are needed, why virtually every position in the federal government system needed to have term limits. That may not even work, but without them, there’s no fricking chance to rein in the fraud, shenanigans and otherworldly corruption.
The main difference between the MSM and the federal bench is the lifetime appointment. Although it’s practically impossible anymore for undesirables to make it through the elaborate and lengthy screening process (for either) without being flagged, apostasy happens. “Journalists” can just be Tucker Carlson’d or Sheryl Atkisson’d, but judges, when they become problematic, well, I’m betting some of them have been dealt with more harshly than the general public knows or would believe. And I bet that the district court judge position is already more temporary than is statutorily claimed. Remains a mystery how Alito made it all the way… Read more »
Yes. The primary purpose of the Ivies, for example, is to screen for the Regime rather than to educate. While the ABA was hot garbage and tossed as an evaluator of judges, the Federal Society is just as craptacular and continues to screen out those who might be problematic. It is interesting that you mention both the MSM and the judiciary together. While the former has imploded, it appears the public perception of the latter is shifting to hostile and dismissive as well. What is happening will speed this along.
I enjoy this blog, check in daily and have for years. Still think it should not get half, or less of the comments that the Kuntsler competitor does – that latter shallower takes than here — in my opinion. Also noting many of those comments are tripe and topic drift — MUCH less so here. My take on this realm is to seek actionable information, to craft strategies that help me and mine. Some of my own takes include, understanding that local prosecutors and judges are nothing more than local LAWYERS. Often with two bit practices — since white hat… Read more »
The further right you move along the bell curve, the less inclined people are to comment. Many people find this comment section intimidating. I have gotten many emails to that effect.
The Little Rock school district had a desegregation case going for over 30 years, and it was a gravy train for the black lawyer in the middle of it all.
Doing a turn as a district judge should be viewed as a resume builder for someone on partner track at a big firm or maybe as a career builder for a lawyer who wants to build his own firm. District judges were supposed to handle mundane administrative tasks to free up the superior court. First thing Z, jumping off the “Partner Track” in any Big Law or “White Shoe” law firm once you’re hired in is career suicide. So trundling off to do a stint as a State or Federal District judge isn’t going to fly. (Besides, getting to Federal… Read more »
“Chief Judge Roberts could step in, but he is clearly blobbed up…”
The problem with Roberts is he is a cuck. Like all the cucks in Congress, when his vote doesn’t count, he upholds Conservative views. But the second his vote counts, like when the other judges are 4-4, he cucks and votes with the left.
Nice. Of course, who are the people is the question that supercedes all of this. Demographic destruction already seems to indicate that we cannot agree upon who we are. The coming economic climate will probably exacerbate those divisions and contending claims. If you look at it, a 90% white 10% black population couldn’t agree on the legitimacy of the legal system. Once the majority was stripped of its moral authority and then legally stripped of its ability to enforce them, the minority showed that they do not consider the legal system of the 90% who are now what, 54% and… Read more »
Anyone hoping to somehow reform an irredeemably broken system – by working within the system and placing his hope in men – is doomed to disappointment. Meanwhile, the forces of the evil, spiteful, mutants are paid and organized, and they are in no way vanquished. Link via Bayou renaissance man – an army of bioleninists. No way to deal with these creatures other than permanent removal. Best of luck.
https://x.com/TonySeruga/status/1903677337406992400
You are 100% correct about the lunacy of Judge Russell Clark. He single-handedly ruined St. Louis City. I lived through his “desegregation” ruling, which effectively forced white parents to move to the suburbs to escape immediately deteriorated schools. Everyone affected by his ruling was worse off.