President Donald Trump’s unusually personal criticism of federal judges has drawn rebukes from many quarters, including from Supreme Court nominee Neil Gorsuch, but not much from the judges themselves.
The leader of the federal judiciary, Chief Justice John Roberts, has himself been a target of Trump’s attacks. But Roberts has refused to comment on Trump’s remarks, including recent criticism of judges who are dealing with the president’s executive order on immigration.
And that’s not likely to change, even if Trump keeps up his attacks on judges. Bolstered by lifetime tenure, independent judges should not respond to criticism, no matter how harsh or that its source is the president, said a former judge, a law school dean and a constitutional law professor.
Judges “should basically give the tweets the attention they deserve, which means they should be ignored. This is basically a childish tantrum from someone who didn’t get his way. And the judiciary should go about its business and decide cases, including cases involving him,” said Vanderbilt University law professor Suzanna Sherry.
Trump’s style may be different and his language more coarse, but the comments themselves are not the “threat to judicial independence that some commentators have made them out to be,” said University of Pennsylvania law school dean Theodore Ruger.
Not the norm
Former U.S. District Judge Paul Cassell said judges would find themselves in unfamiliar territory “if they start critiquing the Twitter feed of the president.”
Among sitting judges who have commented in some way is Gorsuch, who has been meeting on Capitol Hill with senators who soon will consider whether to confirm his nomination to serve on the Supreme Court.
On Wednesday, Gorsuch said he found the president’s attacks on the judiciary “disheartening” and “demoralizing,” according to Democratic Senator Richard Blumenthal of Connecticut.
Trump took to Twitter to question the veracity of Blumenthal’s account, but Senate Democratic leader Chuck Schumer of New York and Senator Ben Sasse, a Nebraska Republican, each confirmed that Gorsuch made similar comments to them.
“Frankly, he got pretty passionate about it,” Sasse told MSNBC’s “Morning Joe,” adding that Gorsuch said any attack on the “brothers or sisters of the robe is an attack on all judges.”
Former New Hampshire Senator Kelly Ayotte, a Republican who is helping with Gorsuch’s confirmation and attended the Blumenthal meeting, issued a statement acknowledging that Gorsuch said he found any criticism of a judge’s integrity and independence to be “disheartening and demoralizing.” But Ayotte said the nominee also made clear he was not referring to any specific comment.
Also Wednesday, U.S. District Judge Dan Polster said during a speech in Cleveland that questioning the legitimacy of a federal judge was a line that shouldn’t be crossed. Polster, a nominee of President Bill Clinton, did not mention Trump by name, according to a report on Cleveland.com.
Polster said that a public office holder who makes those types of comments “calls into question his or her own legitimacy.”
Roberts was the first judge to incur Trump’s wrath. During the presidential campaign last winter, Trump called the chief justice “an absolute disaster” and “disgraceful,” mainly for the two opinions Roberts wrote that preserved President Barack Obama’s health care overhaul.
Next in Trump’s sights was U.S. District Judge Gonzalo Curiel, who was presiding over fraud lawsuits against Trump University. In June, Trump called Curiel “a hater of Donald Trump” who couldn’t be fair to him because Curiel is “of Mexican heritage” and Trump had proposed building a wall on the U.S.-Mexican border.
Last week, Trump called U.S. District Judge James Robart a “so-called judge” after Robart imposed a temporary halt on Trump’s executive order barring people from seven predominantly Muslim countries from coming to the United States. On Sunday, Trump renewed his Twitter attacks against Robart: “Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!”
On Wednesday, he said the “courts seem to be so political,” in reference to the three federal appeals court judges who were considering the administration’s plea to enforce the order. (The panel on Thursday rejected a bid to reinstate it.)
Trump is not the first president to object to court decisions or to opine about how a court should rule, said Paul Collins, a political science professor at the University of Massachusetts at Amherst. Obama used his 2010 State of the Union message to assail the Supreme Court’s Citizens United campaign finance ruling, with several justices in the audience. Obama also delivered a lengthy pitch for his health care law while the court was weighing the case in 2015.
With the exception of John F. Kennedy, every president since Dwight Eisenhower has been critical of some Supreme Court decisions, said Collins, drawing on research he did with co-author Matthew Eshbaugh-Soha of the University of North Texas.
But past presidents did not make their displeasure known by “attacking judges … or by questioning the decision such that there’s a possibility of undermining faith in the judicial system,” Collins said. “I get this uncomfortable sense that the president may be trying to lower confidence in judges in anticipation of defying a ruling.”
Ruger said Roberts, as the head of the judicial branch of government, or another justice might feel compelled to speak up about the importance of an independent judiciary if the attacks continue.
But Cassell, a law professor at the University of Utah who was a judge from 2002 to 2007, said Trump has the right to voice his disagreement. “We live in an age now where, for better or for worse, the language we use is getting rougher in a variety of contexts,” he said.