The Volokh Conspiracy
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David French Is Right: Judges Do Seek The "Respect" Of Their Peers
And that is the problem.
President Trump continues to shift paradigms and cause people to reconsider long-held beliefs. His latest Truth Social post has launched a thousands takes. I've already focused on Ed Whelan and the Wall Street Journal. Here, I will write about David French's column in the New York Times.
David purports to explain why many Republican-appointed judges have ruled against Trump. David is not simply writing based on what he reads in judicial opinions. Rather, he suggests that he has some inside information--or at least personal insights. French writes:
I come from the conservative legal movement, I have friends throughout the conservative legal movement (including many Trump-appointed judges), and I think I know the answer, or at least part of it.
David is speaking, or least he purports to speak, for judges that Trump appointed during his first term.
I've written that Whelan and the Wall Street Journal got the situation 100% backwards. French, to his credit, accurately perceives the symptoms, but makes the wrong diagnosis.
French explains that judges are more interested in the respect of their peers than the applause of the crowd:
The immense pressure that Trump puts on his perceived rivals and opponents exposes our core motivations, and the core motivations of federal judges are very different from the core motivations of members of Congress. Think of it as the difference between seeking the judgment of history over the judgment of the electorate, and to the extent that you seek approval, you place a higher priority on the respect of your peers than the applause of the crowd.
What David writes here is absolutely correct. But I don't think he sees the problem. Who are the "peers" that judges seek the approval of? Legal elites. The New York Times. The Wall Street Journal Editorial Page. The faculty at top law schools. Conservatives who are allowed in polite company. Look at the fawning treatment that Judges Wilkinson and Boasberg have received in recent months. By contrast, look at the crucible the press placed Judges Cannon and Judge Kacsmaryk under. If you rule the right way, you win awards and receive standing ovations from bar associations. If you rule the wrong way, you receive death threats. (The media has not seen fit cover the two cases in which defendants have pleaded guilty to threatening Judge Kacsmaryk--not just sending pizzas.)
There is an entire ecosystem established on the left and center-right to keep conservative judges in line. David is a focal point of that ecosystem. Indeed, this column, whether by design or intent, reinforces the theme that he and others are the gatekeepers of valid arguments.
Judges of all stripes seek the approval of one group over the other. David is simply telling us that seeking his approval is just fine, but don't even think about seeking other types of approval.
Judge Ho has written that most judges fear getting booed. He's right. And many judges really fear getting booed by people like Ed Whelan, David French, and the Wall Street Journal. What makes Trump nominees like Bove different is that they don't care. They reject these pillars of the conservative establishment. And in turn, the pillars can only charge people like Bove with being partisan hacks.
When I write about judicial courage, I am not simply speaking about standing up to pillories from the left. It also entails resisting pillories from the right. And this is the sort of fracture that we see happening before our eyes.
Those who once had influence see that influence slipping away. And the locus of influence is moving.
French writes:
If your decisions are the measure of your worth, then seeking the applause of the crowd can lead you down a dangerous path.
I agree, but I think seeking the applause from French and others is leading the Supreme Court down a very dangerous path. There is a storm brewing on the horizon.
Judges should stop seeking applause, full stop. Decide the case based on the law, and put all political considerations aside. We will all be much better for it. Judges have to follow the Constitution, just like the President.
