By: Andrew C. McCarthy – nationalreview.com – May 2, 2023

Left: Senate Majority Leader Chuck Schumer speaks to reporters on Capitol Hill, October 26, 2021. Right: Sen. Dick Durbin (D., Ill.) at a Senate Judiciary Committee hearing on Capitol Hill. (Elizabeth Frantz, Aaron Bernstein/Reuters)none

Democrats are waging a multifront jihad to delegitimize the judiciary because the Supreme Court has a conservative majority that believes the Constitution means what it says. The campaign would make the Muslim Brotherhood proud, leveraging, as it does, lawlessness and intimidation ops (e.g., the leak of the Dobbs draft opinion and protests at the conservative justices’ homes — all ignored by the Biden Justice Department) with public-relations campaigns (e.g., the ongoing smears of Justices Clarence Thomas and Neil Gorsuch over trumped-up financial-disclosure violations, the sideswipe at Scalia Law School) and legislative gambits.

That last includes a Senate Judiciary Committee hearing this morning. This is the theater for which committee chairman and No. 2 Dem in the chamber, Dick Durbin (Ill.) pressured Chief Justice John Roberts to testify, cavalierly ignoring principles of the separation of powers (to say nothing of the fact that, with the calendar having turned to May, the Court is entering its crunch time for cranking out this term’s many remaining opinions). The chief justice rightly declined to attend this partisan Democrat circus — an attempt to extort the Court into adopting a Democrat-dictated “ethics code” — which Congress has no constitutional authority to require the Court to do, much less power to impose such a code by legislation.

The justices presumably know that if they were to engage in futile appeasement of the  media-Democrat complex by adopting some ostensibly benign ethics code in these circumstances, Durbin et al. would instantly brand that gesture as a concession that the justices have behaved unethically, fueling Democrat calls for further “reform” — the code for Court-packing schemes (which probably won’t come to fruition), and for continuing the political harassment and intimidation until a conservative justice or two “evolve” into part-time progressives à la Anthony Kennedy (just as FDR’s Court-packingblitz, though it failed legislatively, overcame the philosophical-judicial resistance to the New Deal administrative state).

One must hope that Senator John Kennedy (R., La.) was correct, during the Dems’ 2020 Court-packing demagogy, when he observed that their tactic of making manifestly false assertions about the Court and the justices won’t work because “the American people are not morons.”

In a related salvo, Senate Majority Leader Chuck Schumer is suddenly on the warpath against single-judge divisions in federal judicial districts. In large states, the federal districts are split into divisions. Otherwise, litigants and jurors might have to travel hundreds of miles to attend court proceedings. Thus, for example, the vast Northern District of Texas (covering 96,000 square miles) is headquartered in Dallas, but it also has divisions in Abilene, Amarillo, Fort Worth, Lubbock, San Angelo, and Wichita Falls. There are only twelve active judges in the Northern District (active meaning full-time, as opposed to senior judges with reduced caseloads — of which the district has four). As a result, some of the divisions are assigned a single judge to ensure that the division is covered. Civil lawsuits filed in those divisions are thus presided over by that judge.

Obviously, this can lend itself to forum-shopping, but there is no way around that because every state’s geography and residential layout is different, and the alternative would be to have cases assigned in a way that would force litigants and jurors to travel for hours to get to court — exactly what the division system avoids. The possibility of forum shopping is best dealt with by appellate review and its sobering effects: We presume judges, regardless of their personal predispositions, will follow the law (including the rules calling for recusal when there is a real bias issue). If they don’t, they will get reversed by the appellate court, and if the judge’s actions are clearly lawless, they can be subject to mandamus orders (i.e., the appellate court can direct them to knock it off). Judges don’t like to be reversed, and it is humiliating for a judge — whose job is to uphold the law — to be mandamused.

The Democrats’ sudden concern about forum-shopping was not in evidence when challenges to President Trump’s policies on southwest border security somehow managed to be filed thousands of miles away in Hawaii’s federal district court, the court of Judge Derrick Kahala Watson — who was appointed to that sparsely staffed tribunal by President Obama, a chum from law-school days. In any event, the current target of progressive venom is Judge Matthew Kacsmaryk, the conservative and pro-life Trump appointee who mans the Northern District of Texas’s Amarillo division.

That, of course, is where pro-life physicians filed their well-grounded objections to the manner in which the FDA first approved the abortion pill (mifepristone) and later removed safeguards for its use. As Rich and I discussed in a recent podcast episode, for all his critics’ hysteria about Judge Kacsmaryk’s audacity, for example, in referring to an unborn child as, you know, an “unborn child” (rather, one supposes, than a “clump of cells”), his opinion in the case is workmanlike. No one could claim that he violated the law or produced an irrational ruling. Rather than impose it imperiously, he stayed it so the Biden administration would have recourse to the Fifth Circuit U.S. appellate court and, finally, the Supreme Court.

The case is thus working its way up the chain in regular order. Moreover, Kacsmaryk did not say the FDA lacked authority to approve mifepristone for use (which may not even be a live issue because the statute of limitations for challenging the 2000 approval may have lapsed) or to remove the safeguards originally placed on its use. He ruled, instead, that an administrative agency has to follow the law in promulgating and amending rules. What a concept!

All that aside, what’s remarkable is Senator Schumer’s chutzpah. In a threatening letter — which he sent, not on behalf of the Senate, but as a Luca Brasi–like political tough guy — he warned the Northern District of Texas’s chief judge, David C. Godbey, that he’d better take some action against single-judge divisions or the Congress would. Of course, Schumer has no legitimate authority in that regard. Yes, the Constitution gives Congress significant authority over inferior federal courts, though not the Supreme Court; but Schumer is not Congress. As a single senator, even a senior one at the head of one party’s caucus, he has no prospect of enacting legislation that would make good on his threat.

So it was just that, a threat: reminiscent of the Democrats’ similarly thug-like brief that Durbin and four other Judiciary Committee hacks (Senators Sheldon Whitehouse, Mazie Hirono, Richard Blumenthal, and Kirsten Gillibrand), submitted to the Supreme Court in 2019 to warn the justices that they’d better not cross progressives in a major Second Amendment case; and reminiscent also of Schumer’s own incitements against Justices Gorsuch and Brett Kavanaugh (“You have released the whirlwind and you will pay the price”) on the grounds of the Supreme Court at an abortion-rights rally. (Mind you, the most impeachable misconduct by President Trump on January 6 was, as chief executive, to urge a mob to demonstrate on another branch’s turf and in a manner that could corruptly influence its operations. What Schumer did was no different in principle, just in effect — or lack thereof.)

This was not just outrageous on its face, it smacks of hypocrisy. (This being Schumer, that’s baked in the cake.) For years, Schumer pushed for the creation of a federal courthouse in Middletown, N.Y., in Orange County: That far corner of the Southern District of New York lies about 75 miles from the SDNY’s Manhattan headquarters and 60 miles from the SDNY’s judicial district in White Plains (which handles Orange County). Schumer’s monument to patronage never came to fruition because there was inadequate justification for it — it was opposed by judges and the executive branch because Middletown did not generate enough litigation for a stand-alone courthouse. But if established and assigned just the right judge, it would have been an awfully enticing forum for progressives, no?

If Democrats on the Senate Judiciary Committee are really worried about ethics rather than about the Supreme Court (over which they lack authority), maybe they could turn their attention to their own glass house. Despite its unseemliness, securities trading by members of Congress — who uniquely affect market prices and are positioned to gain access to corporate insider information — plows merrily along. Who could forget the insider-trading investigation of now-retired senator Richard Burr, who enriched himself based on information about the coming Covid crisis? As our former colleague Kevin Williamson memorably put it, “History Called — and Senator Burr Called His Broker.” When it comes to lawmakers’ ethics, or lack of same, nothing really changes. CNN recently reported that holdings by senators and representatives outperformed the S&P 500 by about 17.5 percent in 2022 — funny how that happens. And according to Business Insider, 78 members of Congress have violated even the minimal standards enacted to discourage insider trading and conflicts of interest.

No reason for the Senate Judiciary Committee to concern itself with such things, apparently.

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Source: Dems in Congress Attack Conservative Jurists, Claim It’s about Ethics | National Review