Why Donald Trump has declared war on the judiciary.

Why Donald Trump Has Declared War on the Judiciary

Why Donald Trump Has Declared War on the Judiciary

The law, lawyers, and the court.
Feb. 10 2017 6:49 PM

Why Trump Has Declared War on the Judiciary

He’s making things awkward for his SCOTUS nominee and hurting his chances in court. What’s his endgame?

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Judge Neil Gorsuch is in a tough spot. Above, he shakes hands with President Trump after being nominated to the Supreme Court in a White House ceremony on Jan. 31.

Chip Somodevilla/Getty Images

There is no longer any doubt that President Trump is at war with the federal judiciary. The more the courts align against him, crossing virtually all ideological and political divisions to do so, the more he insists they are partisan and “political” and willfully endangering the country. The only questions remaining are how this will affect the Neil Gorsuch nomination and why Trump is waging this particular war.

It started with an attack on the federal judge—George W. Bush appointee James Robart—who last week issued a temporary stay on the president’s travel ban. Trump took to Twitter to refer to him as a “so-called” judge, then informed his followers that Robart himself should shoulder the blame should a terror attack occur.

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The outcry against Trump’s not-so-veiled threats was swift and bipartisan. But the president didn’t stop. On Wednesday, the day after the 9th U.S. Circuit Court of Appeals heard oral arguments over the travel ban, Trump accused the judges—who at that point were still considering the case—of playing politics. “It’s a sad day,” Trump said, at a meeting with police chiefs. “I think our security is at risk today, and it will be at risk until we get what we are entitled to.” Citing the text of the Immigration and Nationality Act, the legislation he claims gives him the unreviewable power to do what is best for national security, he sneered at the judges: “A bad high school student would understand this.”

For good measure, the president added: “I don’t ever want to call a court biased and we haven’t had a decision yet. But courts seem to be so political, and it would be so great for our justice system if they would be able to read a statement and do what’s right.” In a half-sentence-long feint at decorum, Trump said, “I will not comment on the statements made by certainly one judge.” He then continued as per usual: “But I have to be honest that if these judges wanted to, in my opinion, help the court in terms of respect for the court, they’d do what they should be doing. It’s so sad.” He also took to Twitter to suggest, again, that a future terror attack would be the responsibility of the judges hearing the appeal:

To be clear, what the president is doing is blaming the court for politicizing the court. By acting like a court.

Nobody should be surprised that there are now reports of threats against the federal judges who heard the appeal at the 9th circuit. Those threats have prompted federal and local law enforcement to increase security protection for those judges. The White House dispatched Leonard Leo, one of Trump’s principal advisers on his Supreme Court nomination, to assure CNN that it was a “huge stretch” to connect President Trump’s ongoing attacks on judges with any physical threats to judges. “President Trump is not threatening a judge, and he’s not encouraging any form of lawlessness,” Leo said. “What he is doing is criticizing a judge for what he believes to be a failure to follow the law properly.”

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Maybe, but the judicial independence salami is getting sliced awfully thin these days. No matter how often or how loudly you say that attacks on individual jurists don’t threaten the judiciary or judicial independence, anybody with eyes can see that is what’s happening.

On Wednesday, we learned that—among other things—Neil Gorsuch has eyes. Trump’s Supreme Court nominee about broke the jurisprudential internet when reports emerged that he’d told Sen. Richard Blumenthal that Trump’s attacks on the judiciary were “demoralizing” and “disheartening.” Sen. Ben Sasse said Thursday that Gorsuch’s comments were directly connected to Trump’s attacks on the 9th Circuit judges: “Frankly, he got pretty passionate about it. I asked him about the ‘so-called judges’ comment, because we don’t have so-called judges or so-called presidents or so-called senators. And this is a guy who kind of welled up with some energy and he said any attack on any—I think his term to me was ‘brothers or sisters of the robe’—is an attack on all judges.”

Although Gorsuch’s own spokesman confirmed his remarks, Trump responded by insisting that Blumenthal was lying and by noting that Blumenthal didn’t serve in Vietnam. And look at that squirrel over there! And then Sean Spicer insisted, in a tetchy exchange with the press, that Gorsuch’s comments about attacks on the judicial branch had absolutely nothing to do with Trump’s attacks on the judicial branch. In a vintage alternate-fact word salad special, Spicer said that Gorsuch “literally went out of his way to say I’m not commenting on a specific instance. So to take what he said about a generalization and apply it to a specific is exactly what he intended not to do.”

The crazy-like-a-fox crowd, which holds that each of Trump’s dumb moves has some secret genius purpose, posits that this has all been good news for Gorsuch. It was masterminded from on high, the theory goes, and allows the nominee to appear both independent and principled, with no cost at all to the president. I’m not sure this is right.

For one thing, Trump has now tied his nominee to a larger debate about the rule of law and the role of the judiciary. That’s a debate the Senate will now take up in Gorsuch’s confirmation hearing, and one that the nominee will not be able to sidestep with claims that the issue may come before him at the Supreme Court. For another, I suspect that Gorsuch will be alarmed enough by the fact that his colleagues on the federal bench are receiving death threats and extra security details that he will find it very hard to do anything but continue to condemn the president, albeit in the mildest possible terms. To do anything less is to quite literally permit an ongoing call for reprisal against jurists who disagree with the president.

What is Trump’s grand plan here? Mostly, I continue to believe that his attacks on the judicial branch are deliberately destabilizing for their own sake and that they are deliberately politicizing a branch of government about which Gorsuch cares a good deal. Whether that is being done—as former Assistant Attorney General Jack Goldsmith has suggested—because Trump wants to lose in court or because Trump and Steve Bannon want to delegitimize the court system more generally feels immaterial. No judge will stand for it. They are well aware of the stakes here.

The president’s surrogates can mince words and dodge this mess for a long time. But as almost every judge in the country lines up in defiance to Trump’s posturing, and in fact begins to resist it for its own sake, it becomes ever harder for Neil Gorsuch to avoid wading in to this fight. At this point, staying on the sidelines during Trump’s war against the judiciary feels like an abdication of fundamental responsibilities.

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.