Responses to criticisms of my NY Times piece

My op-ed generated many more tweets and emails than I could respond to, so with apologies to my critics, I gather my thoughts here.

1. “Many presidents have criticized judges. Haven’t you heard of Teddy Roosevelt’s ‘banana’ comment about Holmes?”

Presidents have frequently fulminated against judges in personal terms in private, and often disagreed with the Supreme Court about its rulings in public. I still haven’t heard of a case where a president publicly attacked the character of a judge who ruled against him. Even if such a case exists, it would prove only that other presidents have acted irresponsibly. But if someone has heard of such a case, send it to me and I will post it in this blog.

Do these distinctions make a difference? Yes they do. A president is entitled to express his constitutional views, and to criticize people, including judges, who disagree with them. Personally attacking a trial judge who has ruled against him belongs to a different category of behavior. Here, the president is singling out a particular person, implying that his judgment is deficient, and making the claim, albeit in veiled terms, that his order is not valid. This act threatens the single most fundamental norm of our constitutional order, which is that the president must obey judicial orders.

2) “Some presidents have even disobeyed courts, while Trump has not. Haven’t you heard of Andrew Jackson or Abraham Lincoln”?

Jackson was president at a very early, Banana-republic stage of our history. He, like Jefferson, believed with some plausibility that the federal judiciary was stacked with political enemies. Jackson, who was a lawyer, actually cared very much about the law, but believed that John Marshall wielded judicial power in a partisan manner, and further that compliance with Worcester v. Georgia would result in a bloody war. Lincoln obviously had to contend with the Civil War. (Apparently, he did not technically violate Taney’s order, but I won’t rest on this point.) Does anyone seriously think that circumstances today are comparable? Does anyone think Trump is entitled to violate Judge Robart’s order because of a comparable emergency?

Probably the best precedent for Trump’s defenders is Franklin Roosevelt. He did criticize Supreme Court justices in a harsh manner, and he did so publicly, to lay the groundwork for his court-packing plan. Here again, I appeal to historical context. Roosevelt was president at a time of serious economic emergency. Moreover, although he sought to change the personnel of the Court through constitutional means, his attempt to pack the court nearly destroyed him politically, despite his extraordinary popularity at the time.

3) “If anything this action by Trump hurts him in courts and strengthens the spine and backbone of the courts.”

Maybe, maybe not. But even if it does, the effect is damaging. It’s not good if the courts don’t trust the president and seek to undermine him. A president can be effective in a wide range of areas—law enforcement, national security, even ordinary regulation—only if the courts give him the benefit of the doubt. I think Trump is more likely to hobble the presidency than destroy the courts; that is hardly reassuring. At least in principle, he could repurchase their trust by turning down the invective.

Instead, he has doubled down and is obviously calculating that if a terrorist attack occurs, he will be able to blame the judicial system for preventing him from protecting us. This is dangerous territory.



4) “Typical: he criticizes Trump for the ‘so-called’ remark while keeping silent when Obama ‘humiliated’ the Supreme Court in his 2010 State of the Union Address.”

I defended both Bush and Obama against critics who argued that they had overreached. I saw no problem with Obama’s mild criticism of a Supreme Court case, though I can see why Supreme Court justices might justifiably stop attending the State of the Union Address as a result. That incident was a tempest in a teapot. Trump’s remark falls in a different category, as I explained above.

5) “Judge Robart has lifetime tenure; he can take a little criticism from the president.”

I’m sure he can. But the question is whether the president and lower-level executive-branch agents will respect judicial orders, not whether judges will continue to issue them.

6) “Gorsuch should be kept out of it. Moreover, he has an ethical obligation not to comment on a political matter.”

I have dutifully examined The Code of Conduct for United States Judges and pronounced myself mystified by this claim. The Code does not say or imply that a federal judge should not criticize the president for attacking the character of another judge. In any event, Gorsuch is a special case. He is a nominee for a position where he will sit at the top of the judicial hierarchy, and have a special obligation to stand up for the court system as a whole.

A minor side-debate has erupted over whether Gorsuch should make an announcement before his hearings or wait until the conference hearing. I think either would be fine; the latter would be less embarrassing to Trump but, I suspect, sufficient.

7) “It was just a tweet.”

Yeah, right.