California Forum

Donald Trump’s threat to judicial independence

The 9th U.S. Circuit Court of Appeals building in San Francisco.
The 9th U.S. Circuit Court of Appeals building in San Francisco. AP

No president in American history has attacked federal judges in the intemperate manner of Donald Trump. Trump either does not understand judicial independence or does not care about it. Either way it is frightening for the country and for basic principles of checks and balances.

The latest eruption occurred last week after federal Judge Jon Tigar in San Francisco issued a temporary restraining order blocking the Trump administration from barring migrants who cross into the United States illegally from seeking asylum. Trump responded by criticizing the judge and the United States Court of Appeals for the Ninth Circuit.

“Every case that gets filed in the 9th Circuit, we get beaten,” Trump said, according to the Associated Press. “And then we end up having to go to the Supreme Court, like the travel ban, and we won … This was an Obama judge. And I’ll tell you what, it’s not going to happen like this anymore. ”

Chief Justice John Roberts responded with a rare rebuke to a president, saying, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”

Predictably, Trump replied, “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country … why are so many opposing view (on Border and Safety) cases filed there, and why are a vast number of those cases overturned. Please study the numbers, they are shocking. We need protection and security - these rulings are making our country unsafe! Very dangerous and unwise!”

Opinion

President Trump has his facts wrong in that judges appointed by many different judges, including him, have ruled against him. On Nov. 16, U.S. District Court Judge Timothy Kelly, a Trump appointee, issued a temporary restraining order in favor of CNN reporter Jim Acosta, whose press credentials the White House revoked.

This, of course, is not the first time Trump has attacked judges. After federal district court Judge James L. Robart issued a temporary restraining order against the travel ban, Trump tweeted, “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!”

erwin chemerinsky.JPG
Erwin Chemerinsky

Trump then expressed contempt for the deliberations of the three-member appellate court convened to review Robart’s order, calling the legal argument “disgraceful,” and remarking that a “bad high school student would understand this.”

Presidents, of course, can disagree with court rulings and have done so before. Courts enjoined many of President Obama’s executive orders, including Deferred Action for Parents of Americans and a limit on pollution from coal-fired plants. But he never said that the decisions were by “so-called judges” or were “ridiculous” or “disgraceful.” No President ever has used language like this before.

This is a clear attempt to undermine the legitimacy of the courts. President Trump does not want to be checked by anyone.

I fear the day when Trump says that he does not care what a court declares and will command his government to ignore a court order. That has not happened yet and hopefully will not. But given his disdain for courts, it is not hard to imagine. Then there will be nothing to protect any of us from being rounded up by the government and held without recourse. That truly will be the moment of an unprecedented constitutional crisis.

But we cannot wait until then to speak out. It is urgent that especially those in the legal profession, Republican and Democrat alike, condemn President Trump’s attack on the judiciary. Long ago, President Andrew Jackson wrote: “All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous Judiciary.”

Now, more than ever, we need that independent and virtuous judiciary. Courts must review the constitutionality of executive and legislative acts. Sometimes presidents win and sometimes they lose, but never before have they expressed such disdain for the judicial process. The freedom for all of us is endangered if the integrity of the courts is undermined.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be contacted at echemerinsky@law.berkeley.edu.
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