Bush-Appointed judge credits Roberts for standing up to Trump

Published 1:51 pm Saturday, December 1, 2018

by John Micek

John E. Jones III doesn’t look or sound much like a rebel.

Like a lot of federal judges, he’s given to sober suits, long pauses, and thoughtful and deliberative sentences.

But Jones, a judge of the Middle District of Pennsylvania, in the state capital of Harrisburg, is pretty much a legal apostate in our newly narrow judicial universe where all federal judges are “Obama judges,” or “Bush judges,” or “Clinton judges.”

In 2005, in a case that became known as the “Dover Panda Trial,” Jones ruled that a central Pennsylvania school district’s attempt to teach intelligent design in science class violated the Constitution’s Establishment Clause.

In 2014, Jones beat the U.S. Supreme Court to the punch by a full year, overturning Pennsylvania’s gay marriage ban.

Still, if we’re following the rules set down by President Donald Trump in his latest Jeremiad against judicial independence, then Jones, a President George W. Bush appointee, should not have ruled, as he did in Kitzmiller, that “the writings of leading [intelligent design] proponents reveal that the designer postulated by their argument is the God of Christianity.”

And in the Trumpiverse, where judges are expected to rubber-stamp the White House’s proposals, and not act as the co-equal branch of government, there’s no way that a “Bush judge” would have offered an impassioned preamble in the same-sex marriage case about the rights of “all Pennsylvanians have the right to marry the person of their choice and consequently.”

But Jones did just that.

And it wasn’t because Jones was legislating from the bench. And it wasn’t because Jones decided to shred the Constitution and cast it to the four winds. It was because he took a look at the facts, the Constitution, and precedent, and made a ruling that followed the law of the land.

Sometimes it’s really that simple.

“It’s not that we’re going rogue, we’re deciding cases according to the law,”Jones said when I called him to ask him about Trump’s judicial broadsides, the president’s extraordinary war of words with U.S. Supreme Court Justice John Roberts, and Jones’ own concerns about attacks on judicial independence.

Jones declined to comment directly on Trump, who recently groused loudly, and publicly, about a federal judge’s ruling short-circuiting the White House’s attempts to turn away a column of asylum-seekers who have now reached the southern border.

But he did credit Roberts, who rebuked Trump’s attacks on the judiciary, sternly noting that “we do not have Obama judges or Trump judges, Bush judges or Clinton judges.” Roberts also smartly observed that an “independent judiciary is something we should all be thankful for.”

The chief justice’s words were “a timely statement for him to make and truly a heartfelt statement,” Jones observed.

“As the functional head of the federal judiciary, to see him stand up for his judges was just terrific,” Jones said. “I think most of us [judges], if not all of us, feel that way.”

Reflecting on the independence of the judiciary, Jones noted that “all we have, as is so often said, is our credibility,” he said. “We don’t have the purse and we don’t have the sword — as Alexander Hamilton said. If that credibility is destroyed and people think they can disregard the rule of law in society, then we are going to a very dangerous and dark place.”

“We have an appellate system that gives everyone the opportunity to have due process if they disagree,” he continued. “Decisions themselves can be roundly criticized. It’s a free country. But when those attacks devolve into something that is personal or when a judge’s authority is questioned because we’re a co-equal branch of government, it’s problematic for all of us.”

And that’s why it’s so important for people to respect the independence of the judiciary.

There will be times when you don’t agree with a judge or his or her jurisprudence (and I have plenty of disagreements with the current U.S. Supreme Court), but they’re there for a reason: To make sure everyone gets a fair shake under the law.

And one of these days, it might be your turn. And you won’t realize how much you miss that right to a fair shake until it’s not there anymore.

“We need to dial back the inflammatory rhetoric that might not be designed to imperil judges but might have that effect,” Jones said. “We should be very careful about that.”

JOHN L. MICEK, an award-winning political journalist, is the Opinion Editor and Political Columnist for PennLive/The Patriot-News in Harrisburg, Pa. Readers may follow him on Twitter @ByJohnLMicek and email him at jmicek@pennlive.com.