When I was a very new public defender, I once asked a judge to expressly ignore the law. My client had been convicted of a DUI, and his license was duly suspended. But he lived in Fernley, and during the three months he wasn’t allowed to drive, a levee there failed and was flooding his family’s home while he was at work. He borrowed a truck to go try to save some of his personal property, but he was pulled over, and arrested for driving with a revoked license due to a DUI – an offense which carries a mandatory minimum of 30 days in jail.

The prosecutor was also new, and she refused to consider the extenuating circumstances. I wanted to take it to trial and argue that the violation of law was a necessity, although it would have been a long shot. But my client chose to plead guilty because he was moving to another state for a better job in a few months, and couldn’t risk missing his window if the matter had been delayed and he lost the trial.

And so I begged the judge to give him less than the statutory minimums under the unique facts of the case. “Surely the law is not so rigid,” I argued, “that the Court cannot grant some extraordinary relief here.” 

The judge wanted to. He was literally squirming in his seat. But in the end, he followed the law. And as disappointed as I was in the outcome for that client, I was glad – because I knew the next time I had an argument where the sympathy factor didn’t weigh in on the side of the criminal defendant (which is most of the time), but where the law did (such as a motion to suppress evidence based on an illegal search), I could count on him to follow the law. (And I came away wiser – that was the last time I ever made an argument like that.)

***

I am continually amazed how often political partisans openly demand that various government officials ignore the law. It’s bad enough when they would ask a federal agency to flout congressional statutory authority, but we now routinely see those same partisans – including people in (and/or running for) powerful elected positions – demanding that judges ignore the law and simply dictate some preferred policy outcome.

This week, Congresswoman and U.S. Senate candidate Jacky Rosen did just that, when criticizing Supreme Court nominee Brett Kavanaugh for an opinion he wrote in 2013 concerning Yucca Mountain. Here’s Rosen:

“I have serious reservations about Judge Kavanaugh, and his pro-Yucca ruling adds to my list of concerns about how his confirmation to the Supreme Court would harm hardworking Nevadans. We have to do everything we can to keep our state from becoming the nation’s nuclear waste dump, and this ruling should raise major red flags for Senator Heller as he evaluates this nominee.”

Clearly, Rep. Rosen didn’t actually read what Judge Kavanaugh wrote. If she did, she didn’t understand it. Or even worse – she actually has no idea what judges actually do, or she lacks the most basic understanding of the proper role of federal appellate courts in a constitutional republic.

The case in question is In re Aiken County, 725 F.3d 255 (D.C. Cir. 2013), wherein various municipalities and private parties, concerned about their local short-term nuclear waste storage facilities, sued and asked the courts to order the Nuclear Regulatory Commission to actually follow the law and get underway with the licensing application process for Yucca after years of illegal stalling. Because the NRC was unquestionably legally mandated to complete that process, the court ordered them to follow the law to the extent it was able with its existing budget (after previously having given them a year to see if Congress would change its mind).

(Interestingly, failed Obama SCOTUS appointee Merrick Garland dissented in Aiken County, not because he disagreed about what the law said, but because he accepted the NRC’s claims at face value that its existing budget wasn’t sufficient to do anything other than “unpacking its boxes” and “packing them back up again.” Garland was proven wrong when the NRC was able to make significant progress with their existing budget over the following two years and preliminarily conclude that other than securing certain legal rights to build on the necessary land, licensing requirements (particularly the safety ones) were substantially met. It turns out there are very good, practical reasons to defer policy-making to Congress, as opposed to second-guessing statutory policy from the limited confines of a federal bench. (First among those reasons is the lack of reliable crystal balls to be found hidden in a judge’s robes.)

Aiken County isn’t a “pro-Yucca” ruling. It’s a “pro-rule-of-law” ruling. The law happens to be pro-Yucca, and Judge Kavanaugh ordered that agents of the federal government follow the law instead of ignoring it. Kavanaugh said as much himself, writing:

“The underlying policy debate is not our concern. The policy is for Congress and the President to establish as they see fit in enacting statutes, and for the President and subordinate executive agencies (as well as relevant independent agencies such as the Nuclear Regulatory Commission) to implement within statutory boundaries. Our more modest task is to ensure, in justiciable cases, that agencies comply with the law as it has been set by Congress.”

Rosen, in her vapid press release, is arguing that judges should concern themselves with “the underlying policy debate,” even if they have to ignore existing, controlling law to do it. Specifically, she’s upset that a judge demanded that government agents follow the rules set for them by democratically elected lawmakers. She’s actually asking federal bureaucrats to ignore her authority as a congresswoman, and giving them permission to act unfettered by such minor inconveniences as “the rule of law” or “accountability to voters.” The implications for the entire concept of democracy if anyone were to listen to her are chilling.

Once again, I am left to ask – why is it that people who hate and (supposedly) fear Donald Trump so much are the very folks most adamant that the executive branch be given ever more expansive and unchecked power?

***

Although many of my fellow conservatives justified their vote for Donald Trump by arguing he would appoint good judges, I was unconvinced. I believed his only litmus test would be whether or not a judge would refuse to ever meaningfully limit the power of Trump.

But so far, I have happily been proven wrong on this front, and Judge Kavanaugh’s record of willingness to check the power of executive agencies should give even the most ardent anti-Trumper something to get solidly behind.

I learned very early in my legal career that asking judges to ignore the law for small, short-term gain is foolish, and dangerous in the long term if the judge were to unwisely listen to such counsel. Ms. Rosen has yet to figure it out. Until she does, she is not qualified to provide “advice and consent” to presidents on their judicial nominees as a Senator.

Orrin Johnson has been writing and commenting on Nevada and national politics since 2007. He started with an independent blog, First Principles, and was a regular columnist for the Reno Gazette-Journal from 2015-2016. By day, he is a deputy district attorney for Carson City. His opinions here are his own. Follow him on Twitter @orrinjohnson, or contact him at [email protected].