In a striking departure from judicial norms, Hon. Nancy Gertner, a former federal judge, has publicly voiced concerns regarding the Department of Justice’s (DOJ) credibility. This debate comes amidst growing allegations that the DOJ has been operating in bad faith, raising questions about the longstanding legal principle known as the “presumption of regularity.” This doctrine traditionally allows courts to presume government actions are undertaken in good faith unless countered by evidence.
Gertner, now a senior lecturer at Harvard Law School, highlighted several glaring examples of irregularity in the DOJ’s operations during a recent forum. The implications are profound: if the government cannot be trusted to act with integrity, should courts continue to afford them the presumption of regularity?
The presumption of regularity has historically shielded governmental actions from skepticism, fostering confidence in the system. However, Gertner argues that the current climate suggests a need for reevaluation. “When the government doesn’t act in good faith, why should we, as a judiciary, extend them the benefit of the doubt?” she posed, echoing sentiments shared by many legal scholars and practitioners.
These concerns have been amplified by a report from the Center for American Progress (CAP) authored by Devon Ombres, which delves into the troubling relationship between politics and the DOJ’s decision-making processes. Ombres argues that the increasing political influence over the DOJ has distorted its mission, prompting skepticism not only from judges but also from the public.
Numerous examples have surfaced that Gertner and Ombres point to, showing apparent inconsistencies and politically charged decisions within the DOJ. From controversial prosecution strategies to selective enforcement based on political affiliations, these issues have elicited strong criticism. As judges become increasingly aware of these irregularities, some are calling for transparency and accountability from the DOJ.
The potential consequences of this shift could be enormous. Should the courts decide to abandon the presumption of regularity, it may usher in a new era of heightened scrutiny on the government, leading to a transformational change in how justice is administered. The ramifications could echo through the legal system, affecting everything from criminal prosecutions to civil rights cases.
Furthermore, as the judicial branch grapples with this dilemma, public confidence in the legal system hangs in the balance. If judges express skepticism toward the DOJ, it could embolden the public to question the integrity of other governmental institutions, thus reshaping the landscape of American governance.
As this discussion advances, it reflects broader concerns about the intersection of law and politics in contemporary America. The legal community is alarmed yet captivated by these developments, urging judicial leaders to reassess the fundamental doctrines that govern their rulings.
The questions raised by Gertner, Ombres, and others will likely continue to resonate, initiating important conversations about the necessity of good faith in government action and its impact on the judicial reliance on the presumption of regularity.
Where to Learn More
- Does a Politically Directed Department of Justice Merit the Presumption of Regularity? – American Progress
- Harvard Law School Alumni’s Good Faith Questioned – Harvard University
- The Politics of the Department of Justice: A New Era of Scrutiny – The New York Times
