Recently, Attorney General Jeff Sessions attended the Eighth Circuit Judicial Conference. Considering he was speaking to members of the judiciary, it seems odd he would have used this occasion to deliver a rant against the judicial system.
As a prosecutor, Sessions greatly benefited from the system he now maligns. The justice system barely enters the lives of those being prosecuted. An adversarial system designed to provide the accused with due process is rarely engaged. The outcome is predetermined, except for arguments over minor details. As the Supreme Court wrote in a 2012 decision, the criminal justice system is a downhill slope for prosecutors who rarely need more than a light shove to put someone behind bars.
Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. […]
The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages. Because ours “is for the most part a system of pleas, not a system of trials,” Lafler, post, at 11, it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. “To a large extent . . . horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.”
Having been a beneficiary of a barely-engaged court system for so many years (and now overseeing more beneficiaries as the head of the DOJ), you’d think Sessions would be grateful for all the years the courts rendered themselves pretty much invisible.
Instead, Sessions wants to complain about a supposedly unfair system that keeps acting as a check against the Executive Branch… you know, exactly what it’s supposed to be doing.
I am the top lawyer for the Executive Branch. It is a co-equal branch. It too is entitled to proper respect from the courts. Our Assistant U.S. Attorneys, advocating for legal positions—even if the judge may not agree—are due proper respect.
Judges are not sent from Olympus. They are not always correct. Indeed, our appeals in a number of cases have borne fruit in whole or in part.
Some of the erroneous rulings have been quite costly to the taxpayers, have delayed executive action, and have engendered criticism of the President, and the Department of Justice, in the media and various groups.
In Sessions’ mind, “co-equal” does not mean counterbalanced or of equal power. Sessions’ adheres to an Animal Farm version of equality, where the Executive Branch is more equal than the court system he feels isn’t handing out enough respect. This is a truly bizarre — and somewhat frightening — take on the legal challenges filed against Trump’s executive orders.
Some challenges have been denied. Others have been granted. Injunctions have been issued, with a few of those rolled back after an appeal. This is the way the judicial system is supposed to work, but Sessions wants to hate on it for functioning exactly how it’s designed to.
We have a government to run. It is not the duty of the courts to manage this government or to pass judgment on every policy action the Executive Branch takes.
Ah, but it is the duty of the courts to “manage the government” or “pass judgment on policy actions.” If policies are challenged in court — by citizens — the court has to take the case. Just because Sessions doesn’t like some of the outcomes doesn’t mean the system isn’t working. But it is plainly disingenuous to claim judges have no business passing judgment. JFC, it’s right in the name.
For all the talk about “co-equal,” it’s clear Sessions — as the head of the goddamn Department of Justice — feels the justice system has too much power.
We are also defending the constitutional structure of the federal government against nationwide injunctions—orders by a single district judge that block the entire Executive Branch from enforcing or implementing a statute, regulation, executive order, or policy.
You could also call them “non-party injunctions” or “global injunctions”—because they apply across America or even the world, and grant relief, whether they want it or not, to those who are not parties to the case.
Scholars have not found a single example of this type of remedy in the first 175 years of the Republic. But the Executive Branch has been hit with 22 in less than two years’ time in office.
Wow. That sures sounds like the judiciary has it in for the President. Let’s see if this unprecedented thing has any precedent…
This goes beyond politics. This has been a problem for administrations of both parties. Until President Trump, the President with the most limitless injunctions was President Obama. Before him, it was President Clinton.
That’s Sessions undercutting his own narrative. What this looks like isn’t some grotesque misuse of judicial power. No, administrations regularly setting new injunction records indicates to me the Executive Branch has routinely overstepped its Constitutional boundaries before being reined in by courts — courts designed from the ground up to act as check against overreach by other branches of the government.
The very thing he complains about — being “held back” by the judicial branch — he claims to celebrate towards the end of his prepared remarks.
Our Constitution has governed us from the horse and buggy age to the digital age. Ours is the oldest and most resilient constitution in the world. We don’t need conservative judges or liberal judges. As Chief Justice Roberts testified, we just need judges to adjudicate disputes, calling the balls and strikes as they are without taking sides in the game.
But we must be vigilant to our Constitution’s design and to its most central feature: the separation of powers.
That is what the American people rightly expect from those who enforce the laws of the United States.
Let’s be vigilant to protect the separation of powers, says Sessions, as he suggests the judicial branch might need some trimming if it won’t stop standing in the way of questionable executive orders and policies. Good lord. You’d expect this sort of nonsensical drivel from internet randos, not the head of the DOJ.
Sessions is like anyone else: the courts are working when they deliver decisions he likes and a complete failure when they don’t. That’s fine. And that’s expected, especially when partisan agitation seems to be at an all-time high. But that’s not the sort of thing you tell a judiciary conference. That’s the crap you save for preaching to the converted.
The real ugliness, though, is this: Sessions obviously feels the courts should serve the Executive Branch, no matter how many times he says he values the system of checks and balances that prevents the judiciary from being a subsidiary of the presidential administration. Fortunately, Sessions only has the power to bitch about it. If he could do any real damage to the court system itself, he’d be dangerous. This mini-rant shows Sessions is a small man with a small mind and a willing participant in spreading the Trump Administration’s narrative of victimization — something painfully embarrassing to observe when its being issued by the people leading one of the most powerful nations in the world.
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