Published On: Fri, Jan 3rd, 2020

Trump puts Constitution back on Judiciary’s Must-Enforce List

By Carlo Barbieri

One legacy of President Barack Obama that continues to vex government officials in their efforts to corral the three branches of federal government within their constitutionally mandated boundaries is the constancy of the democratically controlled House to wander into regions where only judicial and executive powers reside. One need only look back to 2019, to the Brett Kavanaugh hearings, the Mueller report processes and the barely fair presidential impeachment proceedings, to find evidence of liberal legislators crossing the line.

Trump set the stage for this meandering. In his judicial appointments, Obama gave a strong liberal and ideological left-wing spin to the U.S. court system, taking up every possible space under his mandate to limit federal court rulings as much as he could. His laissez-faire attitude engendered copycats among other leftists.

The result? Obama made the judiciary his instrument of power. Donald Trump is reacting by moving the courts back to their mandated enforcement of the Constitution. Such a course is, after all, the desire and law of the population.

The judicial segment of American government includes the nine-member Supreme Court, 94 district-level trial courts and 13 courts of appeal that sit below the Supreme Court.  For Obama, the U.S. Senate confirmed 329 Article III judges, 55 judges to the U.S. Court of Appeals, 268 judges to the United States district courts and four to the United States Court of International Trade.

As of mid-December 2019, President Trump has had 158 judicial nominees confirmed by the U.S. Senate to serve on the federal bench — an accomplishment considered to be making a historic transformation in the court system.

And how important is this federal judiciary? Well, it can stop the chief executive in countless ways and jeopardize the country’s prosperity.

So anti-Trump forces, mainly those in the slightly top-heavy Democratic House, are going all out to stop Trump from being in a position to appoint more justices. They are trying to impeach him. They are questioning the legality of his executive decisions and many courts are turning against the president on mundane legal matters.

It’s no secret that Trump, since taking office nearly three years ago, has been filling positions and vacancies in the federal judiciary with conservative judges whose only aim is to enforce the Constitution. Statistics supplied through the internet, the American Bar Association and other agencies support this supposition.

I’ve spent time lately poring over these statistics and found them to be intriguing, though certainly not surprising. What is also not surprising is the fact that those who oppose the current President – liberals in particular, and those who find his frank and open style of governing uncomfortable – make outlandish, often vile efforts to stop his appointees from being confirmed.

What´s surprising, I found, is how easily an atavistic analysis of the judicial system fits together, like similarly imagined pieces of a jig saw puzzle.

An atavism is an unusual entity, depending on how it is applied. In biology, an atavism is a modification of a biological structure whereby an ancestral trait reappears after having been lost through evolutionary changes.

In social sciences, atavism is a trend toward reversion, as if people in the modern era revert to ways of thinking and acting from a former time.

For this column, I am using atavism the way Joseph Schumpeter employed it to explain World War I in 20th century liberal Europe. He defended the theory that an international society built upon commerce will avoid war because fighting is destructive to a stable culture. He said an international society built on commerce will eschew war as an unacceptable itinerary.

His rationale for World War I was that deteriorating governments in Europe (such as the German, Russian, Ottoman and Austro-Hungarian empires) pulled liberal Europe into war. He explains that stability and commerce have a soothing effect on international relations. As a result, the likelihood of war decreases among nations connected by, and dependent on, commercial ties.

Let’s bring the proposition forward about 100 years. Right now, the USA is dealing with issues in far-off nations like North Korea, Japan and China and trade issues affecting Canada and Mexico, all at the same time. Trump is generally succeeding, and that stability can sustain the nation’s economic fervor and reduce war fever.

When the president talks seriously with major nations about trade and the economy, the thought of war is unlikely. North Korea’s “Little Rocket Man” Kim Jong Un is noticeably most feisty when trade is off the table.

At times like this, the judiciary must support the enforcement of the law. The goal of the judicial system is stability and therefore, atavistically speaking, peace and prosperity.

For the sake of comparison, consider President Barack Obama’s eight-year tally of judicial selections. He named and had confirmed two nominations for the Supreme Court – Sonia Sotomayor and Elena Kagan. Both passed muster with the Upper Chamber without the furor, antagonism, grudge and outright malice from anti-Trump sectors that forced Kavanaugh to undergo untoward duress during confirmation. This shows that the political game for the judiciary is as radical as the dispute for presidential election in 2020.

Let’s look at presidential candidate and former Vice President Joe Biden’s recent statement that if elected president, he will nominate Obama to the Supreme Court. This comment would be hilarious if it weren’t so sad to see the scramble for judicial control reach such a serious point.

We can opine that the judges now being selected by President Trump will make a lasting impact on the courts for decades to come. In the long run, this may lead to courts revisiting long-standing judicial rulings, in particular, Roe v. Wade, which led to the legalization of abortion – and has branched out with ancillary decisions impacting fetal termination.

Trump’s historic appointments have already tipped the balance of numerous federal courts to a conservative tilt. That includes flipping the U.S. Court of Appeals for the Third Circuit from a Democrat-appointed majority to a plurality of Republicans.

Atavism is happening here. Court rulings and measures we thought had been long ago decided and / or forgotten are finding their way back to court agendas.

Harvard Professors Steven Levitsky and Daniel Ziblatt warn in their book, “How Democracies Die,” that our governing system is in danger. But democracy no longer ends with a bang–in a revolution or military coup–but with a whimper: the slow, steady weakening of critical institutions, such as the judiciary and the press.

The good news is that there are several exit ramps on the road to authoritarianism.

About the Author

- My name is Carlo Barbieri, an entrepreneur, civic activist and a leader of many organizations associated with Brazil. A native of Brazil myself, I am currently the CEO of Oxford Group, a firm composed of many international consulting and trading companies. I am also a founding member of the Brazilian Business Group and founding member and Past President of the Brazil Club. In addition, I serve as a Board member of the Deerfield Chamber of Commerce. I have served as a member of the Florida Chamber of Commerce and the Florida Brazil Partnership. Past President of the Rotary Club – Boca Raton West for the 2014-2015 term, I have also been Vice President and Professor of 2Grow – Human Development. An Ambassador of Barry University in Brazil, I am the former President of the Black Fire Bull Steak House. I have also presided over a number of organizations such as the Brazilian Association of Trading Companies (ABECE), Brazil-China Chamber of Commerce in São Paulo, Brazil-Australia Chamber of Commerce, Brazil-Dominican Republican Chamber of Commerce; director of the Trade Center of the State of São Paulo, Brazilian Association of Freight Forwarders and Brazilian Association of Banks. I was also a local Council member for the Consulate General of Brazil in Miami, for the 2013-2017 term.

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