WASHINGTON – President Donald Trump’s escalating attacks on the federal judiciary drew denunciation Wednesday from his Supreme Court nominee, Neil Gorsuch, who told a senator that the criticism was “disheartening” and “demoralizing” to independent federal courts.
Sen. Richard Blumenthal, D-Conn., said Gorsuch made the comments during their private meeting Wednesday, and the account was confirmed by Ron Bonjean, a member of the group guiding the judge through his confirmation process.
Trump on Wednesday morning declared that an appeals court’s hearing Tuesday night regarding his controversial immigration executive order was “disgraceful,” and that judges were more concerned about politics than following the law.
The remarks followed earlier tweets from Trump disparaging “the so-called judge” who issued a nationwide stop to his plan and saying the ruling “put our country in such peril. If something happens blame him and court system.”
Blumenthal said Gorsuch, whom Trump nominated to the Supreme Court just over a week ago, agreed with him that the president’s language was out of line.
“I told him how abhorrent Donald Trump’s invective and insults are towards the judiciary. And he said to me that he found them ‘disheartening’ and ‘demoralizing’ – his words,” Blumenthal said in an interview.
Gorsuch “stated very emotionally and strongly his belief in his fellow judges’ integrity and the principle of judicial independence,” he added. “And I made clear to him that that belief requires him to be stronger and more explicit, more public in his views.”
The contretemps added another layer to the roiling nature of Trump’s young presidency. Some historians wondered if Supreme Court nominees had ever separated themselves in such a way from the president who nominated them; others tried to recall if a president had ever given a nominee reason to do so.
Less than three weeks after taking the oath of office, Trump already has a legal dispute that seems likely to arrive soon at the Supreme Court. His comments about the judiciary seem far beyond the more veiled criticism presidents usually lob at the branch, and Democrats have pointed to those comments in arguing for a close examination of Gorsuch, who has served for 10 years on the U.S. Court of Appeals for the 10th Circuit.
Within hours of Blumenthal’s revelation of Gorsuch’s remarks, there were questions about how Trump, famously thin-skinned about criticism, would receive his nominee’s words. There was a competing theory that they were a calculated attempt by Gorsuch to assert his independence.
Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, a group promoting Gorsuch’s nomination, said the judge’s remarks simply confirmed what those close to Gorsuch already knew.
“He’s always been a person independent of the president, and it was shown by his statement,” she said.
Those on the left, meanwhile, said Gorsuch would need to do more than that.
“Is Gorsuch distancing himself from Trump? As we say on the Internet: LOL,” Drew Courtney of People for the American Way said in a statement. “To be clear: Donald Trump’s pattern of attacks on federal judges is more than demoralizing – it’s a threat to the separation of powers and our constitutional system, and it’s hard to imagine a more tepid response than to call them ‘disheartening.’ “
Trump has been on a days-long crusade against the judicial branch since U.S. District Judge James Robart of Seattle halted the administration’s executive order temporarily halting the U.S. refugee program and barring entry to the United States from seven predominantly Muslim countries. A three-judge panel in the 9th Circuit Court of Appeals is deliberating whether Trump’s executive order should be allowed to continue.
Speaking Wednesday at the Major Cities Chiefs Association Winter Conference in Washington, Trump said he listened to the oral arguments at the appeals court and was disappointed at what he heard.
“I don’t ever want to call a court biased, so I won’t call it biased,” Trump told the group. “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.”
Trump said the arguments were “disgraceful” because his executive order “can’t be written any plainer or better and for us to be going through this” – he paused to mention that a judge in Boston had ruled to allow the order to continue.
Trump said the courts were standing in the way of what he was elected to do and that even “a bad student in high school student” would support his policies.
“We want security,” he said. “One of the reasons I was elected was because of law and order and security. It’s one of the reasons I was elected . . . And they’re taking away our weapons, one by one. That’s what they’re doing. And you know it and I know it.”
The panel of 9th Circuit judges questioned whether the administration had any evidence of increased risk that would warrant the new restrictions, and whether the restrictions violated the law and the Constitution’s protections against religious discrimination.
Trump’s comments were the latest escalation in a worsening dispute between the executive branch and the judiciary that the president has personally carried out on social media and in public remarks. While it is not new for a president to disagree with the actions of another branch of government, Trump’s crusade against the federal judiciary comes before the legal process has fully played out and is unusual for its threatening tone and use of personal invective.
White House Press Secretary Sean Spicer said Wednesday that the president is expressing his frustration with a process that he believes should be subject to common sense.
“He respects the judiciary,” Spicer said. “It’s hard for him and for a lot of people to understand how something so clear in the law can be so misinterpreted.”
He added that Trump, who has a long history of punching back against his opponents both political and personal, is also speaking directly to his supporters who are looking for him to aggressively deliver on his campaign promises.
“He likes to talk to his supporters, to be blunt,” Spicer added. “Part of it is that people wonder – who helped elect him – what is he doing to enact his agenda.”
Trump’s handling of the incident recalled his attacks during the presidential campaign on an American judge of Mexican descent, Gonzalo Curiel, who Trump claimed could not fairly adjudicate a fraud case against now-defunct Trump University because of his ethnic heritage.
“In Trump’s world there’s a precedent where he believes a judge of Mexican heritage can’t fairly judge his case,” said longtime Republican strategist Rick Wilson, a frequent Trump critic. “It’s part of the overall pattern of the Trump White House: They want to always be on the attack. It’s not enough to say their ideas are wrong their policies are wrong; you’ve got to nuke them.”
A coalition of Democratic members of the House introduced a resolution criticizing Trump’s attacks, and Laura Brill, a California lawyer and former clerk to Justice Ruth Bader Ginsburg, sent the administration’s top lawyers a letter on behalf of nearly 150 lawyers who practice in the federal courts denouncing Trump’s comments.
“Lawyers across the political spectrum believe that the president’s personal attacks on individual judges and on the judicial branch are improper and destructive,” Brill said in a statement. “Because judges face ethical constraints in their ability to respond directly, the letter calls on the president to retract and end such personal attacks.”
Not everyone was deeply offended by Trump’s words. Paul Cassell, a University of Utah law professor who served as a federal district judge from 2002 to 2007 and was nominated by President George W. Bush, said he believes Trump “stepped over the line” in his criticism of Robart.
“But I would characterize it as a misdemeanor traffic ticket, not a felony,” Cassell said. “Judges have thick-enough skins that they are used to being criticized. We live in a time in which strong language seems to be the order of the day.”
“The president certainly has a right to criticize the court,” Cassell said.
He said he thought then-President Barack Obama went further in his 2010 State of the Union criticism of the Supreme Court, which had just decided the Citizens United v. Federal Election Commission case. Cassell said Obama used “more elegant language,” but also contends that Obama’s analysis of the case was off-base.
Besides, he added, “The president can tweet all he wants, but the final decision will be made by the judiciary.”