Bench Memos

Trump’s Bad Judgment on Judges

Ramesh Ponnuru wrote last night over at The Corner about recent comments by The Donald that his sister, federal Senior Circuit Judge Maryanne Trump Barry of the Third Circuit, would make a “phenomenal” Supreme Court justice, but that “we will have to rule that out now, at least.”

Even after accounting for familial bias, though, the comments indicate that Donald Trump’s judgment on judges is horribly, horribly skewed. Judge Barry’s opinion in Planned Parenthood of Central New Jersey v. Farmer is a textbook example of abortion distortion and judicial activism, with Judge Barry calling New Jersey’s partial-birth abortion ban “based on semantic machinations, irrational line-drawing, and an obvious attempt to inflame public opinion instead of logic or medical evidence” and a “desperate attempt to circumvent” abortion jurisprudence.

Moreover, in Judge Barry’s view, it shouldn’t matter “where in the woman’s body the fetus expires during an abortion.” The partial-birth method, as Justice Kennedy observed in his dissent in Stenberg v. Carhart (2000), has a “stronger resemblance to infanticide” than other forms of abortion because it involves partially delivering the baby. In Judge Barry’s view, though, it doesn’t matter whether doctors partially deliver a baby before stabbing it to death.

It turns out that the opinion was superfluous. Then-Judge Alito’s separate opinion in Farmer points out that Barry’s opinion was “never necessary and [was] now obsolete” in light of the Supreme Court’s holding in Stenberg, which was issued before the Third Circuit’s opinion. To put it bluntly, Barry went out of her way to bash a law preventing partial infanticide to make a political statement, and in the process all but ignored binding Supreme Court precedent. 

Jonathan KeimJonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...

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