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Trump and the Courts: the Polish Precedent

The Trump has been busy with so many things he didn’t notice that his right wing friend in Poland just took a left turn.  Until that happened, they were like two peas in a pod.

Jaroslaw Kaczyński is to Poland, what Trump is to the United States. According to a report in The Guardian, he is considered the leader and driving force behind the Law and Justice party (PiS) in Poland, and in that capacity, has hand picked leaders of the country, and made decisions that affect its future. Among other things, he gave impetus to legislation that took control of the Constitutional Tribunal that is responsible for determining the constitutionality of legislation, and took over the agency responsible for selecting new judges.

In April 2018, at the urging of the PiS and Mr. Kaczyńsk, a law was passed that lowered the retirement age for judges to 65, and provided that all judges who reached that age by July 3, 2018, would have to retire.  The PiS said that change was needed to rid the court of communist judges and improve its efficiency.

The Trump was understandably envious of Mr. Kaczynski’s ability to control the courts in Poland.  The only thing the Trump could do with respect to the courts and judges he didn’t like in the United States, was to rail against them and he did that with great enthusiasm.

He referred to a decision by the 9th Circuit Court of Appeals with which he disagreed as a “ridiculous ruling.”  A White House statement about another case in which a Trump policy was struck down said that the ruling was an example of “egregious overreach by a single, unelected district judge.”  When his approach to immigration was struck down by a judge of Mexican descent, he attributed his loss to the judge’s ancestry. Before he was elected, he said that Justice Ginsburg’s mind “was shot,” called her an “incompetent judge,” and said she should resign.

On November 20, 2018, the 9th Circuit Court of Appeals struck down a proposed administration rule that said only people who entered the United States through an official port of entry could apply for asylum.  A furious Trump called the decision “a disgrace” and described the judge who wrote the decision as an “Obama judge and I’ll tell you what, it’s not going to happen like this any more.”

The description of a judge as an “Obama judge” was too much for John Roberts, the Chief Justice of the United States Supreme Court.  In a statement released by the Court’s public information office, the Chief Justice said that the U.S. “doesn’t have Obama judges or Trump judges, Bush judges, or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

The Chief Justice’s response was not well received by the Trump.  It so angered him that after he’d had a pleasant afternoon of golf at Mar a Lago, playing with Jack Nicklaus, he took time out of his busy schedule to fire off a tweet contradicting the Chief Justice.  He said that the country does have “Obama judges” and those judges have a much different point of view “than the people charged with the safety of our country.”  The Trump went on to say that “It’s a disgrace what happens in the 9th Circuit.”

Throughout all these fits of tweeting the Trump almost certainly was envious of Mr. Kaczyński’s ability to get rid of judges who did not please the ruling party, and almost certainly wished that he could follow in Poland’s footsteps.  Had he realized what happened in Poland, he would no longer have envied the Poles.

The European Commission is the executive arm of the European Union.  It referred Poland’s action requiring judges to retire at age 65, to the European Court of Justice.  In mid-October that court ordered Poland to suspend the application of the new law.  On November 21, 2018, while the Trump was flying to Mar a Lago to play golf and say hi to the troops around the world, Poland reversed its law on removing judges.  It reinstated all the judges it had forced out under the early retirement rules.  The Law and Justice Party said the judges were being reinstated because the European Court of Justice, the EU’s top court ordered Poland to suspend the application of the mandatory retirement rules.  The PiS said it was reinstating the judges because it respected the rulings of the European Court of Justice.

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