President Trump’s attacks on “so-called” judges have been described as “disheartening” and “demoralizing” by his own Supreme Court pick, 10th Circuit Judge Neil Gorsuch. But more liberal judges are being less guarded with their words, creating an escalation that isn’t going to come out well for anyone.
U.S. District Judge Dan Polster, a Clinton appointee based in Cleveland, gave a speech Wednesday night in which he didn’t mention Trump’s name, yet stepped right up to the line of calling his presidency illegitimate.
“This is serious business, because you start calling into question the legitimacy of someone, that undermines the whole system, all right?” Polster said in response to a question on whether he was worried about the judiciary’s status under Trump.
He said a public officeholder in one government branch who makes those types of comments “calls into question his or her own legitimacy.”
“I think to say it publicly, that’s his right,” Polster told the crowd. “But it calls into question, and some might even say forfeits, his or her own legitimacy. So I’ll leave it at that. It’s an important question, but that’s how I feel.”
Judges are right to complain about what Trump is doing. As the ostensibly nonpolitical branch of government, the judiciary cannot defend itself in public with the same vigor as elected and appointed officials in the legislative and executive branches can. Judges have to rely on the political process to punish politicians who go too far in disparaging them. And that’s something the voters chose not to do in 2016, after Trump attacked Judge Gonzalo Curiel, asserting that his Mexican heritage somehow made him incapable of doing his job fairly.
On the other hand, judges have robust constitutional protections from elected politicians. They have lifetime appointments, paychecks that cannot be reduced, and (in practice) immense authority to decide questions that come before them. Assuming they don’t commit any crimes, they are shielded from political pressure even if they consistently issue rulings that defy common sense or the plain language of the law or are overturned on a regular basis.
A critical step in establishing tyranny is to break down the rule of law by purging judges from the courts and replacing them with regime loyalists. This happens today in poorly developed democracies, just as it happened in the great tyrannies of the last century.
America has fortunately avoided such a purge, even though our elected branches have often been at odds with and at rare moments even defied judges. But this happens enough in today’s world that it serves as a reminder. The rule of law begins and ends with everyone’s willingness to abide by the rules and accept the decisions they don’t like, not the ones they do like.
So far, no one in Trump’s cabinet has been willing to defy a court order. Even Trump, for all of his impulsive online insults, hasn’t yet said that he will do so. We are not in the midst of a constitutional crisis.
But the rule of law is a lot like the virtue of chastity — you don’t have to go all the way in order to weaken it.
Trump needs to take the advice of his own Supreme Court nominee and knock it off with the attacks on judges. If he isn’t harming the judiciary, he at least risks persuading more judges to defy him even more energetically.
But the good news is that the Founding Fathers created a system designed specifically to protect the judiciary from a president who would assail it. That system can survive any number of intemperate tweets.
