How Democrats can combat 'right-wing hackery' in the federal courts
When Judge Aileen Cannon granted former President Donald Trump’s request for a special master in the federal investigation of the government documents he was storing at Mar-a-Lago, more than a few Trump critics pointed out that Cannon is a Trump appointee. Journalist Jason Linkins, in an article published by The New Republic on September 12, points to Cannon as a symptom of a larger problem: too much “right-wing “hackery” in the federal courts.
“Over Labor Day weekend, Trump-selected judge Aileen Cannon ordered the appointment of a special master to review the material seized by the Justice Department from Mar-a-Lago — a move that will allow the president to delay the ongoing investigation,” Linkins explains. “It’s a result that everyone with half a brain could have spotted from a million miles out: Trump sought out the judge most willing to bend the rules in order to help him wriggle his way out of trouble…. It should be apparent to everyone by now that the conservative legal movement and its foot soldiers in the judiciary have ideological goals in mind and a political agenda they want to pass via the superlegislature once known as the judicial system.”
Linkins continues, “But many members of the judicial commentariat seem to be stuck in the world they remember, not the world we live in now. To these experts, the right is still beholden to the law — it still needs to tick the appropriate jurisprudential boxes, consider long-standing legal precedent, and follow the established rules.”
Cannon, Linkins writes, is “hardly the first lower court judge to indulge herself in some right-wing hackery” and “won’t be the last.”
“The Supreme Court has led the way with decisions that are increasingly untethered to judicial precedent, the Founders’ ideals, and in some instances, the very facts of the cases on their dockets,” Linkins observes. “Because of this, conservatives have been generally emboldened to stake more aggressive claims in their suits and filings, in order to test the limits of preposterousness, like velociraptors pushing against the weaknesses in Jurassic Park’s fencing.”
Linkins recommends that Democrats “discredit” bad legal arguments by “adding judges at the lower court level, where the much larger case backlog justifies such a move, and hopefully avoid the all-but-certain national mainstream media–driven trauma that would follow any attempt to pack the Supreme Court.”
“Increasing the number of judges in these venues could help the jurisprudential traditions that are now being gutted gain a new foothold and lessen the opportunity for conservatives to forum-shop their way to victory,” Linkins argues. “The bad news, of course, is that unless Democrats are planning on holding both houses of Congress, (President Joe) Biden only has a few weeks left to do the job.”
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