OPINION

Guest opinion: Lack of Impartiality by some judges speaks to our political environment

Marshall H. Tanick
Special to the Naples Daily News
A judges gavel.

The ruling a couple of weeks ago by Federal Judge Aileen Cannon in Fort Pierce   upholding the claim by ex-president Trump for appointment of a Special Master and halting  the criminal investigation concerning his stashing of sensitive and off-limits government documents at his Mar-a-Lago premises should dispel any lingering illusion  that judges “are like umpires“ neutrally making decisions  as if they were automatons.

The famous but facetious metaphor advanced by Chief Justice John Roberts during his confirmation hearing 16 years ago and repeatedly  parroted in less vivid terminology by some of his conservative court cohorts was always a myth, and the Mar-a-Lago matter  reflects that reality.

Her ruling, now being appealed by the Department of Justice to the Atlanta-based 11th Circuit Court of Appeals, exemplifies a remark by  her benefactor, former President Trump, after one of many litigation setbacks. He scornfully  referred to a judiciary  comprised of “Obama judges,” implying that judges make decisions based on ideological, often partisan bases in a way congruent with the views of those that appointed them. That comment  was promptly scoffed at by the Umpire-in-Chief Roberts,  who refuted his contention by exclaiming that “We do not have Obama judges or Trump judges or Bush judges or Clinton judges.” 

   Tell that to the litigants in the Mar-a-Lago  case or countless other high profile ones. The Labor  Day shot by Judge Cannon, a post-election appointee of the ex-President,seems  to clash with existing law; is  unsupported by legal precedent;   imbued with hyperbolic speculation; and reeks with unwarranted empathy for the “stigma” and  “reputational damage” to the man who appointed her to the bench.

    It happens to be yet another high-profile  pro-Trump ruling by a Trump-appointed Florida Federal  judge. A few months ago, another of his appointees, a jurist in Tampa with no prior litigation experience and scant qualifications except ultra-conservative credentials overturned the Biden administration’s COVID protocols effecting airlines and the transportation industry. The Judge, Kathryn Mizelle, also a late 2000 Trump appointee,   bought hook-line-and -sinker the arguments advanced by Trump acolytes condemning government attempts to rein-in the pandemic.

    But the “Obama/Trump” judges conceit  is a two edge sword and, as the saying goes, cuts  two ways. While Judge Cannon’s decision, if upheld on appeal, gives the ex-President a shot at delaying the investigation and potential criminal charges for quite a while, another judicial ruling a couple of days later cast further doubt on the “judges as umpires” mantra.

A state court  judge in Michigan threw out the state’s antiquated Depression  era abortion ban, dating back to 1931, four decades before the Roe v. Wade recognition of Constitutional  abortion rights, dismantled  by the Dobbs decision 10 weeks ago. In doing so, the judge was dismissive of the contention that she was biased and should have removed herself from the case because she has been a financial contributor to Planned Parenthood as well as donor to the campaign  coffers of  the governor and attorney, both abortion rights proponents who are participants in the litigation. Those relationships  certainly raise troubling concerns about her impartiality.

While judges are not inherently biased and generally approach issues from a neutral standpoint, these cases show that addressing in high profile  matters with strong political overtones their decisions are often ideologically-skewed toward the person who appointed them.

    It’s no coincidence that the ex-President’s attorneys shopped around for a favorable Florida forum after the FBI search authorized by a judicial officer in Miami, who incidentally was appointed by that court’s judges, not the President. While his legal team has been criticized, indeed ridiculed, in many quarters for their performance, they showed in this instance that they succeeded in shopping for a sympathetic jurist.

Despite many pundits, like umpires, calling the  Team Trump out, the lawyers managed to reach base safely. Whether they make it around the base paths  remains to be seen, but they are at least in scoring position.

Marshall H. Tanick is a resident of Naples. He is a Constitutional and employment law attorney who has represented women in reproductive rights matters.