Stop us if you’ve heard this one before… a President walks in a room and criticizes a federal judge, suggesting that said judge is possibly not legitimate. Sorry, we’ll have to be more specific? President Trump is at it again with his “so-called judges” remark as his travel ban EO works its way through the lower federal courts … perhaps on its way to SCOTUS? Also, more on framing the debate of SCOTUS nominee Gorsuch as he begins his Senate visits.
Direct download: Advice & Consent 24: So-called judges and framing the Neil Gorsuch debate (mp3)
So-called judges and framing the Neil Gorsuch debate
POTUS and the Courts
Are the President’s comments about the federal courts dangerous?
Lena: Words matter. Full stop. I’ve heard it argued that it’s just “his way of talking” or “his vernacular” to say things like “so-called judges.” I don’t buy it. The man supposedly has “the best words” and so I’d like for him to try to use some of them. Here’s the harm I see:
- Degrading systems of justice
- Creating mistrust
- Signaling to supporters on individuals, potentially causing personal harm
- Distracting us from other dangerous stuff he’s doing
Tim: It’s more than ok for a President to disagree with a court ruling against him or her… it’s been done probably by every President before and is normal. What’s not is the denigration of the institutions and question the legitimacy of the judge. That’s what’s dangerous.
Adam: To situate this, we’ve dealt with the concept of legal realism for a century, the idea that judges aren’t Platonic guardians who divine the law and then pronounce it. But legal realists don’t say that judges are nothing but politicians in robes. Trump seems to argue that there is no reason for a judge to rule against him unless the judge is illegitimate (biased because of Mexican heritage or an illegitimate “so-called judge.”) This attack on judicial independence is important and should change the way the Senate considers nominees from a president who doesn’t buy into judicial independence. I wrote a blog post explaining why here.
Travel Ban appeal before the 9th Circuit
Framing: Trump’s vision of the courts.
Lena: This began last summer, Trump campaigned with a list of 21 nominees. Campaigned on his litmus tests (Roe & NRA’s 2nd Amendment) Gorsuch was in the second list released which was compiled by Federalist Society and the Heritage Foundation. Then compiled by Don McGahn, the now-White House Counsel, then-Trump election lawyer.
How Trump Chose His Supreme Court Nominee (Adam Liptak, NYT, 2/6/2017)
- Judge Gorsuch is really well known, with degrees from Columbia, Harvard, Oxford.
- Worked against him b/c Trump was trying to make a more anti-establishment pick (which seemed to indicate an aversion to the Ivies.)
- Concern about his record and releasing his name early to create a backlash given how conservative he is
- Wanted the best; most Scalia like (as if it’s still the 1980s)
- Wanted to be assured it wouldn’t be a mistake (a la Justice Souter and Chief Justice Roberts)
- 1/5 Gorsuch met w/McGahn for personal vetting; then met with Vice President-elect Mike Pence (“particularly involved”); Reince Priebus(White House chief of staff); Stephen K. Bannon (chief strategist); Mark Paoletta, (VP Pence’s counsel); and Don McGahn (WHite House Counsel)
- Gorsuch emerged as the “clear winner”
This entire process raises concerns
- What does Trump think he’s getting out of this – litmus test, loyalty, EOs
- Why is Pence so interested/involved. Trump declared evangelicals are going to love his pick, he’s the most conservative. What is that getting to?
- What about his writings did they love?
- How is Gorsuch going to show a strong check/independence when the President is undermining the entire judiciary
Adam: we’re really at a constitutional crisis here involving both a president who seems to have no commitment to rule of law and the Senate’s decision to block the nominee of a president who received a majority of the overall vote and a solid electoral college victory and is now intent on pushing through a nominee who lost the popular vote.
This is perfectly in line with the framers’ intent. They set up a system in which a president elected by an electoral college picked by state legislatures nominates a justice and a Senate that is not democratically apportioned and also was originally picked by state legislatures confirmed or rejected the choice. Then the appointee served for life. Judicial selection was as insulated from the people as could be in a nation that embraced popular sovereignty.
But in a more democratic age, following Andrew Jackson, the progressives, and the 15th, 19th, and 26th Amendment, is it still legitimate to have a nominee so unconnected with the people’s will?