Judge Aileen Cannon’s order appointing a special master to review top-secret documents found at Donald Trump’s Mar-a-Lago club has rightly been ridiculed across the political spectrum — it is a “deeply flawed” decision, in the words of former Trump Attorney General Bill Barr.
But it’s also sparked a more fundamental — and worrisome — debate about judicial independence, one that seemed to have all but abated over the last two years: Is there really a difference between “Obama judges” and “Trump judges,” as the former president once insisted, and as he recently seemed to confirm by his litigation strategy? Or do we have an independent judiciary that rises above politics?
Of course, one ruling by one federal trial judge does not signal a crisis of judicial independence. Yet Cannon’s order underscores the deep fragility of judicial independence and the extraordinary strains it’s of late experienced. The episode is further a timely reminder that there’s no guarantee that an independent judiciary will survive. Just like other public institutions, American courts can unravel and lose public trust, with no easy way to get it back.
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