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Gorsuch Must Condemn Trump’s Attack on a Judge Gorsuch Must Condemn Trump’s Attack on a Judge
(35 minutes later)
Judge Neil Gorsuch, President Trump’s nominee for the Supreme Court, must publicly condemn the president’s attack on the judge who blocked his immigration order. Judge Gorsuch’s sterling credentials notwithstanding, his supporters in the legal community should withdraw their support for his nomination if he fails to do so. Judge Neil Gorsuch, President Trump’s nominee for the Supreme Court, must publicly condemn the president’s attack on the judge who blocked his immigration order. Judge Gorsuch’s sterling credentials notwithstanding, his supporters in the legal community should withdraw their backing for his nomination if he fails to do so.
After Judge James Robart’s ruling, Mr. Trump wrote on Twitter, “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” Mr. Trump may be right that the order will be stayed or overturned — the legal merits are tricky, and Judge Robart has not heard full briefing of them yet. But the attack on Judge Robart’s integrity is indefensible. After Judge James Robart’s ruling Friday evening, Mr. Trump wrote on Twitter, “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” Mr. Trump may be right that the order will be stayed or overturned — the legal merits are tricky, and Judge Robart has not heard full briefing of them yet. But the attack on Judge Robart’s integrity is indefensible.
Federal judges have frustrated American presidents since the founding. Thomas Jefferson fulminated against judicial overreach and tried to get a Supreme Court justice impeached. Andrew Jackson disregarded a judicial order from the Supreme Court; Lincoln suspended the writ of habeas corpus; and Franklin Roosevelt tried to pack the Supreme Court with his own appointees after it blocked many of his New Deal reforms. In his 2010 State of the Union address, President Obama criticized an opinion of the Supreme Court on campaign finance reform in front of some of the justices. Federal judges have frustrated American presidents since the founding. Thomas Jefferson fulminated against judicial overreach and tried to get a Supreme Court justice impeached. Andrew Jackson disregarded a judicial order from the Supreme Court, Abraham Lincoln suspended the writ of habeas corpus and Franklin D. Roosevelt tried to pack the Supreme Court with his own appointees after it blocked many of his New Deal reforms. In his 2010 State of the Union address, President Obama criticized an opinion of the Supreme Court on campaign finance reform in front of some of the justices.
But, by and large, presidents have respected the federal judiciary. As far as I know, no president has publicly challenged the integrity of a judge who has ruled against him. Mr. Trump, as in so many other cases, has broken new ground.But, by and large, presidents have respected the federal judiciary. As far as I know, no president has publicly challenged the integrity of a judge who has ruled against him. Mr. Trump, as in so many other cases, has broken new ground.
His attack on Judge Robart comes at a fraught moment. During Mr. Trump’s campaign, his reckless statements were dismissed by his supporters as mere rhetoric. When Judge Gonzalo P. Curiel ruled against him in the Trump University case, Mr. Trump called him a “total disgrace” and accused him of bias because he was “Mexican” (actually, an American citizen of Mexican descent). It might have been barely possible to see this offensive statement as red meat for the base rather than a considered judgment about the integrity of the federal judiciary. Not anymore.His attack on Judge Robart comes at a fraught moment. During Mr. Trump’s campaign, his reckless statements were dismissed by his supporters as mere rhetoric. When Judge Gonzalo P. Curiel ruled against him in the Trump University case, Mr. Trump called him a “total disgrace” and accused him of bias because he was “Mexican” (actually, an American citizen of Mexican descent). It might have been barely possible to see this offensive statement as red meat for the base rather than a considered judgment about the integrity of the federal judiciary. Not anymore.
Now that Mr. Trump is president, his words matter. When federal judges in New York, Virginia and Massachusetts initially blocked Mr. Trump’s travel ban a week ago, reports emerged that border agents disobeyed the courts or obeyed only grudgingly. Whatever happened, Mr. Trump’s attack on Judge Robart’s integrity could encourage executive branch officials to disregard other judicial orders, and will further inflame people’s distrust of border agents, whether they do or not.Now that Mr. Trump is president, his words matter. When federal judges in New York, Virginia and Massachusetts initially blocked Mr. Trump’s travel ban a week ago, reports emerged that border agents disobeyed the courts or obeyed only grudgingly. Whatever happened, Mr. Trump’s attack on Judge Robart’s integrity could encourage executive branch officials to disregard other judicial orders, and will further inflame people’s distrust of border agents, whether they do or not.
Worse, Mr. Trump has made it clear that he regards any judge who thwarts his designs as a personal enemy. If Judge Robart’s order reaches the Court of Appeals in the Ninth Circuit, the appellate judges will need to worry that if they reverse Judge Robart, they will be seen by the public as validating Mr. Trump’s attack on the district judge, further damaging the judiciary’s reputation for impartiality. If they uphold his order, Trump may attack them as well. Whatever they do, the damage has been done. And this could happen again and again as Trump pushes through his program. Worse, Mr. Trump has made it clear that he regards any judge who thwarts his designs as a personal enemy. If Judge Robart’s order reaches the Court of Appeals in the Ninth Circuit, the appellate judges will need to worry that if they reverse Judge Robart, they will be seen by the public as validating Mr. Trump’s attack on the district judge, further damaging the judiciary’s reputation for impartiality. If they uphold his order, Mr. Trump may attack them as well. Whatever they do, the damage has been done. And this could happen again and again as Mr. Trump pushes through his program.
True, the government has complied with Judge Robart’s order for the time being. Mr. Trump’s remark shows his typical Machiavellian shrewdness. By merely insulting the judge, rather than threatening to disobey him, he is testing the waters. If the public approves the attack, Mr. Trump will be goaded forward to explicit disobedience. In the face of silence, he may hesitate. Only sustained opprobrium can prevent repetition. True, the government has complied with Judge Robart’s order for the time being. Mr. Trump’s remark shows his typical Machiavellian shrewdness. By merely insulting the judge, rather than threatening to disobey him, he is testing the waters. If the public approves of the attack, Mr. Trump will be goaded forward to explicit disobedience. In the face of silence, he may hesitate. Only sustained opprobrium can prevent repetition.
This brings us to Judge Gorsuch. He is the only judge in whom the president has publicly expressed confidence — by nominating him to a judicial position. A rebuke from Judge Gorsuch would be a stinging blow. It would, or at least might, protect the judiciary from further attacks from Mr. Trump for years to come.This brings us to Judge Gorsuch. He is the only judge in whom the president has publicly expressed confidence — by nominating him to a judicial position. A rebuke from Judge Gorsuch would be a stinging blow. It would, or at least might, protect the judiciary from further attacks from Mr. Trump for years to come.
On the merits, Mr. Gorsuch is a shoo-in for the Supreme Court. He is a widely respected judge, praised for his integrity and independence. Normally, we do not expect a nominee to take a position on political issues, or to comment on pending cases, which could force him to recuse himself on the court.On the merits, Mr. Gorsuch is a shoo-in for the Supreme Court. He is a widely respected judge, praised for his integrity and independence. Normally, we do not expect a nominee to take a position on political issues, or to comment on pending cases, which could force him to recuse himself on the court.
And Judge Gorsuch should not take a position on whether the president’s immigration order is unlawful, or make political arguments of any kind. What he should do is stand up for the judiciary. He should declare that the president of the United States should not attack the integrity of a sitting judge.And Judge Gorsuch should not take a position on whether the president’s immigration order is unlawful, or make political arguments of any kind. What he should do is stand up for the judiciary. He should declare that the president of the United States should not attack the integrity of a sitting judge.
This is hardly a political statement. It is a view about the Constitution, one that Judge Gorsuch has already expressed in a judicial opinion:This is hardly a political statement. It is a view about the Constitution, one that Judge Gorsuch has already expressed in a judicial opinion:
Right you are, Judge Gorsuch. Now say it again.Right you are, Judge Gorsuch. Now say it again.