Attorney General Jeff Sessions fired a warning about judicial activism as he slammed federal judges for “allowing unprecedented reviews of governmental operations.”
Sessions railed against “judicial encroachment” in the federal judiciary with the rise in “outrageous” discovery rulings which threaten the very notion of the separation of powers, warning that “once we go down this road in American government, there is no turning back.”
In a speech to the conservative Heritage Foundation in Washington on Monday, Sessions vowed “emergency” Supreme Court battles and promised,”we intend to fight this, and we intend to win.”
“Federal district court judges are not empowered to fashion immigration policy, combat climate change, solve the opioid crisis, or run police departments,” Sessions said. “A federal judge is not a substitute for majoritarian resolution of difficult issues.”
“It is emphatically not the duty of the courts to manage the government or to pass judgment on every policy action the executive branch takes,” he added, pointing to judicial intervention in some of President Donald Trump’s policies such as dissolving the Deferred Action for Childhood Arrivals immigration program and the controversial travel ban.
“In the first 175 years of this Republic, not a single judge issued one of these orders,” Sessions said.
Yes! I absolutely knew Jeff Sessions had teeth. He is the quiet wolf of this Administration. He’s about to tear some liberal throats out. Once he starts, it’s going to be a legal bloodbath. https://t.co/9MV6WOKcdv
— James Woods (@RealJamesWoods) October 16, 2018
“With increasing frequency, district courts are ignoring their role as forums of limited jurisdiction,” Sessions said. “Indeed, courts are even ignoring explicit congressional directives that strip them of jurisdiction to decide certain questions.”
According to Fox News:
Sessions specifically singled out New York district court judge Jesse M. Furman, who ruled that Commerce Secretary Wilbur Ross could be questioned in an ongoing lawsuit concerning the legality of the Trump administration’s decision to add a citizenship question to the 2020 census.
Furman’s decision, Sessions said, contradicts longstanding statutory provisions that protect certain executive branch discussions from disclosure, in order to encourage free and open deliberations by executive branch officials. The plaintiffs in the lawsuit, including several liberal states, are arguing in part that the White House added the citizenship question for political reasons.
Supreme Court Justice Ruth Bader Ginsburg stayed Furman’s order and the high court is expected to rule on the issue soon.
“This is not the first time we’ve had to seek emergency appellate intervention to stop outrageous discovery,” Sessions said about groups issuing legal challenges as a way to dig into the executive branch.
“Too many judges believe it is their right, their duty, to act upon their sympathies and policy preferences,” he added, putting the blame for the approach squarely under former President Barack Obama.
“One argument for activism was advocated openly by President Obama when he declared his judicial nominees must judge with ’empathy.’ It is a seductive argument. But whatever empathy is, it’s more akin to emotion, bias, and politics than law,” Sessions said.
The attorney general warned that the current actions of some federal judges, who are appointed for life and can only be removed by impeachment, will make them “subject to the same criticism of other political leaders, and the same calls for their replacement.”
“When a hot-button policy issue ends up in litigation, judges are starting to believe their role is to examine the entire process that led to the policy decision — to redo the entire political debate in their courtrooms,” he said.
“The idea that any district judge can demand to see the deliberations of the executive branch” will have “a chilling effect,” Sessions said. “Subjecting the executive branch to this kind of discovery is unacceptable. We intend to fight this and we intend to win. This is why we are taking these discovery fights to the Supreme Court in emergency postures. They are disrupting orderly governmental functions at great cost.”
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