Editor’s note: This commentary is by Jeffrey Amestoy, who was chief justice of the Vermont Supreme Court and Vermont’s attorney general. He is the author of “Slavish Shore: The Odyssey of Richard Henry Dana Jr.” (Harvard University Press).
[T]he predictable consequence of using judges as political footballs came from the president of the United States. The decision of a U.S. district court judge to stay the executive order denying entry to foreign nationals from seven predominantly Muslim countries was from a “so-called judge,” tweeted Donald Trump. Millions of Americans whose elected representatives have led them to think judicial decisions are political opinions will believe him. In Washington, the Senate — oblivious to the lasting damage it does to judicial independence — continues to deem any nominee to the Supreme Court as unfit if nominated by a president of the opposite party.
President Trump knows what Know Nothings knew: The easiest target in American politics is a judge. In November 1854 the “American Party” — derided as “Know Nothings” — decimated the electoral landscape of Massachusetts. “It was an entire surprise on everybody,” exclaimed Boston lawyer Richard Henry Dana Jr., who described its members as driven “by religious and national hostility to the Catholics and Irish and a distrust … of the old parties.”
Within two years the American Party’s extremism (most apparent in a notorious “investigation” of nunneries) led it to collapse as quickly as it had arisen. Yet its demise was far from apparent in 1855 when the Know Nothing movement appeared to be unstoppable. Like populist eruptions before and since, the Know Nothings mixed progressive reforms with malignant nativism.
The chief strategist for President Trump apparently believes the new administration can safely mix bigotry, populism and a war on terrorism. But that combustible formula can be safely handled only if President Trump believes in a concept that he has given no evidence of understanding: judicial independence.
Criticizing judges has long been a staple of American politics. (At a meeting with state attorneys general shortly after he became president, former Arkansas attorney general Bill Clinton said we had great jobs because if anything went wrong we could always blame the judges).
Dana’s dilemma was the same as it always is for defenders of judicial independence. It is a principle easy to honor in the abstract but perilous to defend in the face of an unpopular decision.
When the new Know Nothing legislature convened in 1855, no judge was more universally condemned than Judge Edward Loring, who as a federal commissioner upheld the rendition of Anthony Burns from Boston to Virginia and slavery. Richard Henry Dana had represented Burns and was irate at Loring’s decision. But when the Know Nothings sought to remove Loring from his position as a state judge, Dana testified “not in his defense but in defense of the principle of judicial independence.”
Dana’s dilemma was the same as it always is for defenders of judicial independence. It is a principle easy to honor in the abstract but perilous to defend in the face of an unpopular decision. Dana put the issue in terms none could misunderstand: “This game of removal is a game at which two may play … it is not easy to see its end.” If Judge Loring was removed because he enforced the Fugitive Slave Act, “other judges may be removed because they do not.”
Candidate Trump’s indignation (and innuendo) when a judge issued an adverse ruling in the Trump University case made it foreseeable that President Trump would wrap the condemnation of a judge in the mantle of protecting Americans from the “dangers” he has so vividly described. But as any judge who has made an unpopular ruling knows, it is equally predictable that those who despise “hate speech” will castigate a judge who finds an alt-right racist tirade is constitutionally protected.
In the current climate and uncertain weather ahead, Dana’s testimony before the Know Nothings is a reminder to all Americans that even those who know very little ought to know this:
“Any man, however weak, however odious, has certain rights secured to him by the Constitution. If the dominant political party flush from the contest have sought to touch the hair of his head, he can appeal from them to the judges; and there is nothing on earth nearer Heaven, than when the judges of the land vindicate such a man against the popular interests of the hour.”
