The Judicial Resistance

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Publish Date:
September 8, 2017
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U.S. News & World Report
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Summary

They don’t have the numbers in a Republican-majority Congress, they lack the executive firepower of the presidency, and the possibility they’ll get reinforcements at the ballot box is 14 months away – in politics, an eternity.

As a result, liberals alarmed at President Donald Trump’s deeply conservative agenda, and frustrated by the GOP lawmakers paving his way, have repeatedly deployed the most powerful weapon left in their depleted political arsenal: The federal courts.

“What’s the alternative?” says Deborah Rhode, a law professor and director of Stanford University’s Center on the Legal Profession. “The courts are all we’ve got at the moment.”

“Think back to the civil rights era,” says Rhode, the Stanford law professor. When Congress and state legislatures dragged their collective feet in granting equality to African-Americans, civil rights lawyers turned to the court to push for change, with all deliberate speed.

“No one wants to rely on litigation to form a national policy agenda,” she says. Yet “we see the wisdom of that playing out” in the success progressives have had so far in blocking Trump’s initiatives.

“What is really of concern is that President Trump has considerable capacity to effect the selection of the judiciary, not only at the Supreme Court level but the district and appellate level,” Rhode says. “What we’ve seen so far is that they are not merit selections” but conservative ideologues, she added.

Though she knows it’s unsustainable, Rhode expects the best from the federal judiciary, and she hasn’t been disappointed yet.

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