It was bad enough when candidate Donald Trump questioned the impartiality of the federal judge hearing the Trump University lawsuit. (Trump said that the judge’s ethnic heritage would make him biased.)
It was even worse when President Trump accused the federal judges temporarily halting his travel bans of purely political motivations and limited intelligence.
But it was especially disheartening last week to hear disrespect for a federal judge from the mouth of Atty. Gen. Jeff Sessions — who is, after all, the nation’s highest-ranking law enforcement officer. After Hawaii-based U.S. District Judge Derrick Watson issued a temporary restraining order against the administration’s second travel ban, Sessions complained that “a judge sitting on an island in the Pacific” could issue a nationwide decree. The remark was eerily reminiscent of Trump’s earlier dismissive tweet that the U.S. district judge who stopped his first travel ban was a “so-called judge.”
Not that federal judges should be above legitimate criticism. These jurists deal with vital, and at times life-threatening, issues; federal judges need to hear well-informed and zealously advocated contrary views both inside the courtroom and out.
There is a difference between legitimate criticism and crass delegitimization.
But there is a difference between legitimate criticism and crass delegitimization. Sessions crossed the line when he intertwined potentially valid criticism of district court injunctive powers with a dismissive joke. Even if incivility and demonization are the “new normal” for fights among national politicians and pundits — something I’m not prepared to concede, but that’s a bigger issue — there are three good reasons why federal-judge-bashing is beyond the pale.
First, politicians who attack federal judges are not fighting fair. The traditions and ethical canons applicable to federal judges severely limit their ability to respond. It would violate judicial-restraint norms and bring serious rebuke for federal judges to turn legal rulings into platforms for personal rejoinders to political attacks.
Judicial comments outside the courtroom seen as “political” also bring forth swift condemnation. Witness the criticism of Supreme Court Justice Ruth Bader Ginsburg for an anti-Trump comment made off-hand to a reporter during the presidential campaign.
Picking a fight with someone who can’t fight back is the epitome of being a bully.
Second, treating federal judges like other politicians — and, especially, accusing them of having similar partisan motivations — obscures the fact that our constitutional democracy depends on federal judges rising above politics.
Sure, initial judicial appointments are heavily influenced by party and ideology. And scholars detect differences between rulings issued by federal judges appointed by Republican presidents and by those appointed by Democrats.
Much of the time, however, federal judicial decision-making transcends politics. A variety of “rule of law” factors, such as respect for precedent and doctrines of judicial restraint, influence even the most highly visible judicial rulings; this has been shown time and again in social-science studies and prominent anecdotes. (For example, two of the four lower-court judges ruling against the first Trump travel ban were appointed by Republican presidents.)
Although I would be the last person to assert that federal judging is always antiseptically apolitical, life-tenured federal judges often live up to our constitutional democracy’s core aspiration of “equal justice under law.” In any event, it is vital that our civic discourse not assume, or become resigned to, the notion that federal judges are just politicians who wear black robes.
The third — and most important — reason to lament over-the-line attacks is that all Americans, regardless of their political affiliation and ideology, have a vested interest in preserving the national judiciary as a third branch of government with the independence and respect to check and balance nonjudicial officials.
Modern presidents and Congresses have awesome powers affecting our lives, fortunes and freedoms. It follows that federal courts need the independence and respect to not only review presidential orders and federal legislation, but also to declare them invalid. The Supreme Court promoted our constitutional values and standing as a democracy when it invalidated Democratic President Harry Truman’s 1952 order temporarily seizing steel mills during the Korean War, and Republican President George W. Bush’s 2002 order authorizing military-tribunal trials for Guantanamo prisoners.
In 1857, U.S. senatorial candidate Abraham Lincoln criticized the legal reasoning and real-world impact of the Supreme Court’s Dred Scott decision — which ruled that slaves could not assert federal constitutional rights, even in slavery-free territories. Lincoln later insisted that Americans had every right to question the substance of Supreme Court decisions and work to overturn them. But Lincoln never called Chief Justice Roger Taney and his cohorts “so-called justices.”
Every president, attorney general and member of Congress has an obligation to reinforce, not undermine, respect for the crucial constitutional values served by our independent federal judiciary.
Glenn C. Smith teaches constitutional law at California Western School of Law in San Diego and is the co-author of “Constitutional Law for Dummies.”