Criticism of judges and the judicial branch is nothing new. It’s happened since the founding of our republic.
President Trump took issue with a ruling that his new asylum rules ran afoul of his powers — the judge effectively said Trump didn’t have the authority for his actions and that it rested in the hands of Congress. Trump disagreed with the decision, naturally. But he also added that an “Obama judge” issued the ruling, as though politics played a major role in the decision.
Supreme Court Justice Chief Justice John Roberts chided Trump, defending what he says is an independent judiciary and rightly so. Some criticized Roberts, claiming he had nothing to say after President Barack Obama lambasted the Citizens United decision during his first State of the Union address, falsely claiming it would allow foreign corporations to donate to campaigns and ginning up what he said to the point Democrats were whooping and applauding while they surrounded the Supreme Court justices in attendance. Roberts actually did say something about it, especially pointing to the setting in which Obama chose to do it.
As for Trump’s comments, the usual fainting couch act took place with people behaving as though no one ever went after a judge personally in citing disagreement with a decision. Sen. Chuck Schumer, D-N.Y.,, in one of the greatest self-owns ever witnessed on Twitter, had this to say about Roberts and his reaction to Trump:
I don’t agree very often with Chief Justice Roberts, especially his partisan decisions which seem highly political on Citizens United, Janus, and Shelby.
But I am thankful today that he—almost alone among Republicans—stood up to President Trump and for an independent judiciary.
— Chuck Schumer (@SenSchumer) November 23, 2018
Schumer’s tweet utilized words more artfully than Trump, but it’s easy to translate what he said to mean, “Roberts is a George W. Bush justice.” It would not be the first time Democrats attacked a judge or justice personally for a decision they rendered, writing it off as political bias as opposed to jurisprudence.
The problem with Trump’s rhetoric is not so much that he’s so bluntly saying it, but that he’s giving license to future, possibly Democratic presidents, to do the same thing. People can scoff at the notion, but they also scoffed when people suggested President George W. Bush’s expansive utilization of executive power could get utilized by future presidents. Obama campaigned on the issue, lambasting Bush over his use of executive powers. What happened? Obama took the power of the executive to a whole new level. “I have a pen and a phone” and “If Congress won’t act, I will,” are two memorable quotes where the president explicitly warned he would use that power.
There’s another problem for Trump: Judges that he appointed have ruled against him, and that makes his “Obama judge” criticism look all that more ridiculous.
When the White House yanked a hard access pass from CNN’s Jim Acosta, the network filed suit. U.S. District Court Judge Timothy Kelly, a Trump appointee, granted a request for Acosta’s credentials to be returned. He ruled the White House had violated Acosta’s Fifth Amendment right to due process by suspending his press badge without explanation, and didn’t give CNN any chance to appeal the White House’s decision.
Another Trump judicial appointment ruled against Trump, whose disdain for the Mueller investigation is well-known. Trump tweeted in June the special counsel is unconstitutional. Then, a Russian company indicted by Mueller, Concord Management and Consulting, sought to have the charges against them dropped, claiming Mueller’s appointment was unconstitutional. In August, U.S. District Judge Dabney Friedrich ruled against them. In his decision, he said, “The appointment does not violate core separation-of-powers principles.” He also said Mueller has not exceeded his authority.
If people think a Democratic president is an answer to this issue, they’re sadly mistaken. That’s why it would behoove Trump’s advisers and legal team to get him to stop criticizing judges personally and stick to the decision.
Unfortunately, we live in a political era where “owning” someone and playing to the rabid base in the short-term is more important than long-term victories.
Jay Caruso (@JayCaruso) is a contributor to the Washington Examiner’s Beltway Confidential blog. He is an editorial writer at the Dallas Morning News. He is also a contributor to National Review.
