Chief Justice says judges aren't political. True or false?

Chief Justice John Roberts says federal judges are not political. They are nonpartisan umpires of disputes under the law.

Or, in fact, do federal judges create law for partisan reasons, when they should limit their judgments to simply following the law?

The answer is a firm “maybe.”

Conservatives want judges to uphold the existing law and even the thinking of the Constitution’s drafters. Liberals see the country as continually changing, meaning judges must reconsider legal norms.

Of course, federal judges are often selected by the president based on their view of the law, conservative or liberal. That may look like partisanship, though Roberts claims the results are not political.

But a recent federal court decision in Texas that the Affordable Care Act is unconstitutional came from a judge who reliably decides cases in line with GOP policy.

The Supreme Court had ruled the ACA was constitutional because it included a tax. The federal government has unlimited authority to tax, potentially making any tax law constitutional. The ACA taxed any person who did not get health insurance coverage despite the individual mandate to obtain coverage.

Last year, Congress had lowered that tax rate to zero. The widely held belief that the ACA’s individual mandate was eliminated is a major myth. There is now simply no penalty for ignoring it. The taxing authority remains in the law and the rate could be changed by Congress.

The Texas judge found that, without a tax being collected, there is no tax and the entire law is unconstitutional. He thought Congress had meant to repeal the ACA, but, while it cut the tax, it used a procedure that intentionally prevented outright repeal.

ACA supporters argued that the Texas judge had allowed his Republican, anti-ACA political views to guide his judicial reasoning. He had ignored parts of the law that contained other taxes and some which could easily stand on their own even if parts of the law were unconstitutional.

Texas federal courts are full of conservative Bush and Trump appointees. They usually can be relied upon to support opponents of Obama-era laws.

Of course, he could merely be incompetent, not political. With scores of federal judges whipped through the confirmation process by Senate Leader McConnell, some mistakes are inevitable. And some judges change for the worse once on the bench.

By contrast, in Maine, a new federal judge, appointed by President Trump, left no doubt that he could rise above partisanship. He faced a case that demonstrated the kind of work judges must do, leading losers to charge incorrectly that judges are making law.

Maine has ranked choice voting, which allows a voter to rank all candidates on the ballot in order of preference. If a voter’s favorite trails, his or her second choice vote then becomes a first choice vote for one of the top candidates. If you voted for one of the two front-runners, your vote remains the same.

Does this process violate the constitutional principle of one-person, one-vote? That is what the judge had to decide. His decision would determine if the incumbent GOP representative would lose the congressional seat.

Some people argue that voters who originally picked one of the top two candidates never gets to change their vote as candidates are eliminated. Voters for trailing candidates, who are dropped out, get another vote for one of the surviving candidates. That was Rep. Poliquin's view.

The other view is that each voter gets the same chance to vote for all the candidates on the ballot, so none gets more votes than another. If the voter chooses not to make all possible choices, that is the voter’s right but does not undermine one-person, one-vote.

Each side can argue, based on other court decisions and supposed voter or legislative intent, that their interpretation is correct. This kind of debate occurs in most court cases, even though the majority of matters have nothing to do with constitutional questions.

This voter-enacted law had no ready answer about which view is correct. That’s why we must have judges decide, and they must be independent of either side.

Here, the judge, a Republican appointee, ruled against the position of the Republican candidate, costing him the election. Did he make law? Or did he do the judge’s essential job of making an independent decision in an honest dispute?

Presidents may make appointments of judges who they hope will support their policies. But judges are not political players. Life terms are meant to ensure their independence. The record shows a mixed result.

Trump's failure to assume 'mantle' of national leader has major effect

Incoming Republican Sen. Mitt Romney of Utah, the former presidential candidate, has issued a sharp criticism of President Trump.

"A president should demonstrate the essential qualities of honesty and integrity," he wrote, "and elevate the national discourse with comity and mutual respect." Romney concluded that the "president has not risen to the mantle of the office."

Romney may be questioned for his shortcomings as presidential candidate or for taking on the president of his own party. But he also praised major actions of the first two years of the Trump presidency.

He hit on key concerns about Trump's presidency. The president frequently does not speak truthfully and repeats untruths even after correction, making them intentional lies. He does not treat others with respect.

He bolsters his supporters, but seems unwilling to reach out for compromises. How he can brutally attack and belittle Democratic leaders and expect them to make concessions to him, which he will surely claim as his victories over them, is hard to understand.

The issue behind Romney's complaint is far more significant than what kind of a president Trump is turning out to be. He and Sen. GOP Leader Mitch McConnell have raised deep doubts about the American political system.

The U.S. has been called "an experiment" as the first real national democracy in modern history. Its form of government, established by the Constitution, is unique.

It is a manual for the functioning of the federal government and of federalism itself. Office holders pledge to "preserve, protect and defend" the Constitution for good reason. It is new, fragile and subject to attack.

No group of people could devise a manual that would cover all possible concerns, present and future. Beyond the document itself, there must be a set of common understandings about how it would be applied in practice.

Admittedly, these understandings were those of a group of men, most formerly British, who shared a common view of how government would work. They recognized there would be partisan splits, but they believed they would take place within the limits of the Constitution and their common understandings.

They knew the Constitution would need to be amended to deal with new challenges or unresolved questions. Now it has become impossible to adopt almost any amendment for fear that, once the process is opened, radicals could use it to roll back longstanding guarantees of freedom.

They agreed that the president would make Supreme Court appointments with the "advice and consent" of the Senate. 

The understanding was that the Senate will either give its consent or refuse it. But, for President Obama's last nominee, McConnell allowed the Senate to do neither, violating that historic understanding.

The Constitution requires a simple majority vote on most matters. The original understanding was that honorable people would voluntarily end debate. When southern senators wanted to block votes on civil rights, they refused to stop talking. The Senate imposed a supermajority vote to end debate. It now covers all important bills.

Congress is supposed to be the top lawmaking body in the federal government. With members' highest priority being reelection, which leads them to avoid tough issues, Congress has shifted much of its constitutional responsibility to the executive.

Trump does not like the special Senate majority, which protects the minority party, because it prevents his Wall. Democrats regret all the legislative power they have given to Trump, including declaring a national emergency. Neither was a constitutional understanding.

The "mantle of the office" cited by Romney is part of this web of common understandings, essential to the success of the American system of government.

In the U.K., the queen or king is the head of the country and the prime minister is the head of the government. The royal is a symbolic leader for all people, while the prime minister is a political leader.

In the U.S., the president is both head of the country and head of government. As a political figure, the president is accepted as a partisan, the leader of his or her political party.

As head of the country, the president is expected to show that he or she represents the national interest and can separate partisanship and national leadership.

Trump's extreme attacks on Democrats, loyal Americans like him, and his attempt to politicize the armed forces are threats to common understandings and historic practices essential to our system of government.

Is Romney now the only Republican senator who sees these threats? Where is Susan Collins?

Trump's time in office is constitutionally limited, but the harm to common understandings may last.

Partisan posturing is no way to deal with Wall, shutdown EXTRA POST

When the president speaks on national television, the American people expect an explanation of an important action or an attempt to rally them in the face of a major threat. Usually, no response is made by a leader of the opposing party.

Only when the president lays out his program to Congress in the State of the Union address is there a partisan response.

This week, people had the unusual experience of President Trump arguing for one of the key elements of his electoral program and Speaker Pelosi and Senate Minority Leader Schumer opposing the proposal, building the Wall on the southern border.

Both sides engaged in Washington-style debate, important mostly to political actors there and to the national media. They engaged in the same old, insider blame game that completely ignores average people across the country. Instead, they jockeyed for position in the 2020 elections, but without 20-20 vision.

Trump used much the same anti-immigrant rhetoric that he first unveiled when he announced for president. His remarks repeated threats and events that were easily shown as untrue. Most important, he offered nothing new.

Pelosi and Schumer used much the same moralistic arguments against the Wall as they had been preaching for weeks. Most important, they offered nothing new.

Almost everybody shares real concern about immigration. The U.S. is a land built and enriched by immigrants. At the same time, there are reasonable worries about uncontrolled immigration of people who may be endangered in their home countries or seeking a better life. And we continue deferring action on the undocumented immigrants already in the country.

Trump has responded to legitimate issues and phony concerns, though he seems to think the Wall would solve all problems, while the Border Patrol, which supports him, thinks otherwise.

The Democrats have pounced on his making the Wall into his entire immigration policy and his refusal to end the government shutdown unless he gets it funded.

The American people outside the Washington Beltway have the right to believe the government is not listening to their desire for compromise and progress. The gap between posturing politicians and “us folks” grows wider.

Trump could have seized political control and public support if he had used his speech, not as a prelude to declaring a national emergency when there is none, but as the opening of a comprehensive immigration policy, including the Wall. He would then have been in a position to get his Wall while admitting it was not the full answer.

He might have laid out a policy involving both the Wall and other forms of border protection, helping Central American countries create conditions to remove the need to flee, and a plan leading to citizenship for immigrant children and long-term undocumented residents. Given the low expectations for his speech, that would have been stunning.

Trump would not only have kept his promise to his supporters for the Wall, but responded to a majority of Americans who favor a resolution of current immigration issues. He would not be trying to strike fear, but rather to offer a constructive way out.

Trump has gained a reputation for changing his objectives in the midst of a negotiation, a recipe for failure. A comprehensive proposal in the text of his well planned remarks could have fixed that.

He could also have agreed to end the shutdown if the Democrats would accept the basic outlines of his proposal and open negotiations.

What about the Democratic duo? Instead of limiting themselves to condemning the Trump policy, if he had not made such a proposal, they could have done so. Their tone should not have been relentless opposition, but offering a compromise almost sure to be popular. Instead of letting Trump set the tone of the debate, they could have risen above it.

In one key respect, both sides are missing the point. Wall or no Wall will not determine the outcome of the 2020 election. Voters want government to focus on pressing issues, not simply lurch from one election to the next. They don't like shutdowns as a political weapon no matter who is responsible.

One way to negotiate out of a stalemate is to “sweeten the pot.” If the debate is only about the Wall, nothing may happen about immigration or much else. Settling other immigration issues at the same time could make possible a deal on the Wall.

Both sides right now are remarkably short-sighted and focused more on their games than on the national interest. The missed opportunity of the national speeches can be revived.