By Scott Weiser
Former Colorado Supreme Court Justice Rebecca Love Kourlis accuses President Donald Trump of attacking the independence of the judiciary because of the President’s excoriation of Seattle federal District Court Judge James Robart and his side-swipe at the 9th Circuit Court of Appeals in San Francisco.
In a guest commentary in the February 9th edition of the Denver Post, Kourlis writes “For one branch of government to question the legitimacy of another is analogous to saying that their teams should make their own rules and there should be no referees.” Filling her OpEd with Superbowl football metaphors Korlis makes President Trump’s expressed displeasure with the machinations and obvious politically-motivated decisions of Judge Robart, and his frustration with the arguments heard from the 9th Circuit Court judges who heard his appeal of the outrageous temporary restraining order Robart issued sound like a bald-faced attack on the Separation of Powers Doctrine and a threat to democracy.
It’s surprising to hear such nonsense from a former state Supreme Court Justice, and even more surprising to hear it from a Republican who runs the Institute for the Advancement of the American Legal System at the University of Denver, whose avowed intent is to improve the operation and credibility of both attorneys and the courts.
Kourlis writes that it “troubles me” that the President “questioned the authority of a judge to do his job and rule on a matter of law.” Why would that trouble her unless she actually thinks that judges never make mistakes, never engage in activist judicial lawmaking from the bench and never allow personal biases and political beliefs to color their decisions?
President Trump was absolutely correct in questioning the authority of this particular judge to take action on this particular matter because the “Rule of Law” to which Kourlis repeated resorts in her argument happens to say quite specifically, in many different ways including procedural requirements, limitations on judicial authority and issues of standing to sue, that this judge did not have the authority to do anything other than dismiss the complaint on the basis of the plaintiff’s complete lack of standing to challenge United States immigration law as the representative of the people of the State of Washington, a legal fact expressly stated by the Supreme Court, which ruled “it is no part of [a State’s] duty or power to enforce [its citizens’] rights in respect of their relations with the federal government.”
Judge Robart was briefed on that on-point Supreme Court case that flatly informed the judge that the state had no standing to do what it did, so he has no excuse for egregiously, deliberately and without judicial authority departing from the Rule of Law by acting where he had no power to act in ways that violated a host of judicial rules in addition to the most basic one of all, which is that unless the plaintiff has legal standing to sue in the first place the complaint cannot even be considered and must be dismissed.
Kourlis admits as much when she writes “Judges should enforce the law, without regard to popularity of political winds.” On this we agree, but nowhere in her commentary does she even examine the judicial misconduct of Judge Robart or the outrageous and entirely off-topic inquiries of the 9th Circuit judges during the appeal of Robart’s improper TRO that prompted President Trump, among many, many others to express their outrage at the violation of the Separation of Powers Doctrine that Judge Robart’s actions comprises. In taking up the case and issuing a nationwide restraining order based on a complaint by one state Robart is attempting to legislate from the bench by infringing on the President’s Congressionally-granted authority to bar immigration. There is no greater danger to the Rule of Law than an out-of-control judge who usurps the roles of both the Executive and Legislative branches out of ideological bias.
Kourlis speaks in platitudes about the need for an independent judiciary and demands that “we stand back and honor the system and the people who make it work: the judges. We disagree with rulings, we appeal them, but ultimately we accept them and go forward.”
No, Ms. Kourlis, we do not, not when judges engage in unconstitutional and frankly seditious legislating from the bench, which is beyond their authority, or when they violate the very Rule of Law upon which your argument rests by making blatantly unlawful and politically-motivated rulings that usurp the powers granted to Congress and the President.
We refuse to accept such lawless actions and we strive to remove such judges from the bench because it is they who have violated all of the canons of judicial process and impartiality that they have sworn to abide by and it is they who have abandoned their oaths of office in which they swear to preserve, protect and defend the Constitution of the United States, which vests plenary power over immigration in the Congress, not in some two-bit corrupt judge in Seattle and not in some ideologically-driven liberal laughingstock of a federal Circuit Court in San Francisco.
That’s why the power to impeach and remove judges exist, and that’s exactly what needs to happen to four federal court judges on the Left Coast of what is still the United States of America…at least for the moment.