Judges dislike people who judge… them.
The fauxtrage over President Trump’s continued criticism of the black-robed, white-wigged set works as Exhibit A illustrating the point. Judge James Robart slapped down a Trump executive order. The president slapped back on social media.
Trump labeled Robart a “so-called judge” and called his decision overturning his restriction on travelers from Iran, Iraq, Yemen, Libya, Syria, Sudan, and Somalia “ridiculous.” The commander-in-tweet asked, “What is our country coming to when a judge can halt a Homeland Security travel ban and anyone, even with bad intentions, can come into U.S.?”
The Ninth Circuit Court of Appeals maintained on Thursday that the executive order, rather than its reversal, risked causing “irreparable harms.”
“On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies,” the court acknowledged. “And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination. We need not characterize the public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests do not justify a stay.”
When the Ninth Circuit Court issued its 29-page rebuke of the president, Trump replied with an ALL CAPS, 140-characters-or-less “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”
In other words, the lives of Americans outweigh the Constitutional “rights” of noncitizens. That argument failed in court. It wins in the court of public opinion, which explains why so many tell the president to keep his legal opinions to himself.
The critics, imagining some coequal branches of government more coequal than others, contend the president violates some unwritten law of presidential etiquette in his criticisms of judges. Even the judge Trump likes best dislikes the president skewering his colleagues. Supreme Court nominee Neil Gorsuch called the president’s tweets “demoralizing” and “disheartening,” which Democratic Senator Richard Blumenthal promptly put on blast. Trump characteristically returned fire by invoking the senator’s confabulations regarding service in Vietnam.
The current president’s detractors forget that they cheered when his predecessor used his 2010 State of the Union address to dress down a captive audience of Supreme Court justices over their Citizens United decision. Though Obama prefaced his words with an ostensibly respectful “with all due deference to separation of powers,” the New York Times characterized the ensuing words as a “sharp attack.”
Not only does history offer precedent for the president’s “unprecedented” criticism of the judiciary, so too does it provide ample examples of past chief executives restricting immigration based on broad-brush classifications such as national origin. President Franklin Roosevelt banned Japanese, Germans, and Italians from American soil by fiat the day after Pearl Harbor. Unlike Trump, he did not merely suspend entry for 90 days to check their backgrounds. The fact that they came from Japan, Germany, or Italy was all he needed to prohibit entry. While not all past restrictions appear as wise in retrospect as Roosevelt’s, this does not mark them as unlawful.
Judges behaving like politicians get treated by the public, and even presidents, like politicians. The same gavels with which they defend the First Amendment with a swing do not become with a wave a magic wand granting them immunity from second-guessing and insults. When jurists vote rather than rule on cases, people naturally get on their case. The hectoring became especially elevated in recent days because judges not only usurped a legislative power by setting a policy but invalidated national security responsibilities traditionally entrusted to the president. The outrage involves not this policy but this president.
Judge Gorsuch’s instruction proves helpful here.
“It is the role of judges to apply, not alter, the work of the people’s representatives,” Gorsuch said upon his nomination. “A judge who likes every outcome he reaches is very likely a bad judge stretching for results he prefers rather than those the law demands.”
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