Bench Memos

Law & the Courts

‘So-Called Judge’

Some thoughts on President Trump’s tweet referring to Judge James Robart as a “so-called judge”:

1. It’s one thing to criticize a judge’s ruling or reasoning and to argue that the judge is abusing the authority of his judicial office. That’s entirely fair game, though something that a president generally ought to leave to others. It’s quite another thing to suggest that a judge doesn’t possess the legitimate authority of the office. Trump’s tweet may plausibly be read as doing the latter, even if his own less than meticulous wordsmithing might invite the more charitable assumption that he meant only to be criticizing Robart’s ruling (a ruling that is embarrassingly devoid of legal reasoning on the essential points). 

Insofar as the Administration actually wants to get the higher courts to reverse Robart’s TRO, Trump’s tweet is also counterproductive. It’s best to get the courts to focus on the legal arguments, not on some larger contest of will between the White House and the judicial branch.

2. Those who refuse to acknowledge Trump as the country’s legitimate president undermine their basis for criticizing his apparent challenge to Robart’s legitimacy as a judge. You can’t have it both ways. Each holds his office pursuant to the Constitution. It’s fine to criticize Trump for his policies and actions, just as it’s fine to criticize Robart for his rulings. But it’s wrong and dangerous to be questioning the legitimacy of either.

3. As Senator Jeff Merkley’s embarrassing tirade illustrates, many Senate Democrats are engaged in a campaign of  irresponsible and incendiary rhetoric (“theft,” “crime against the Constitution,” “stolen seat”) that, whatever their intentions, threatens to delegitimize the Supreme Court in general and future Justice Gorsuch in particular. Indeed, Merkley has already referred to Gorsuch as “an illegitimate and extreme nominee.” And prominent lefty law professor Geof Stone has gone even further, arguing in Time:

Judge Gorsuch’s nomination should be withdrawn, and the President should nominate in his place a genuinely moderate justice who is acceptable to Democrats and Republicans alike. Only then can we move on with a sense of institutional integrity. Short of that, every decision of the Court decided by a margin of five-to-four with Neil Gorsuch in the majority will justifiably be castigated as fundamentally illegitimate. [Emphasis added.]

It’s possible, to be sure, to argue (wrongly, as my point 1 here explains) that the Scalia vacancy is a “stolen seat” but to acknowledge that Gorsuch, once appointed, will be a fully legitimate justice. But that certainly doesn’t seem to be where Democrats are heading. Their rhetoric is poisonous stuff—much worse that Trump’s bad tweet—and it’s time for them to put an end to it.