Trump can criticize judges all he likes. Lincoln did.
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President Trump’s response to the Washington State judge who enjoined enforcement of Trump’s immigration order has elicited no shortage of complaints.

Trump called Judge Robart a “so-called judge,” described the opinion as “ridiculous,” and predicted it would be overturned. In response, Professor Eric Posner wrote that Trump’s “attack on Judge Robart’s integrity is indefensible,” and he demands that Supreme Court nominee Neil Gorsuch denounce Trump’s behavior as a condition of his being confirmed for the Supreme Court.  

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Posner’s point must not be that judges are above criticism — after all, his father, Richard Posner of the Seventh Circuit Court of Appeals, made a series of vicious attacks on the late Justice Antonin Scalia during Scalia’s lifetime.

 

Rather, Posner contends that “no president has publicly challenged the integrity of a judge who has ruled against him.”

Of course, President Trump is bound to follow and implement orders as to a particular litigant in the federal courts, but longstanding precedent makes it clear that he is totally free to criticize judges who render what he considers to be erroneous decisions and to call for those decisions to be overruled by courts or by Congress in future legislation.  

This point was clearly established by President Abraham Lincoln in the Lincoln-Douglas debates in 1858.

In those debates, Lincoln challenged Senator Stephen Douglas’ support for Chief Justice Roger B. Taney’s decision in Dred Scott, which quite erroneously held that African Americans could never become citizens and that Congress did not have power to limit slavery in the federal territories.

Lincoln, running for U.S. Senate, argued that he had no wish “to disturb or resist the decision” as it applied to the specific instance before the Court. But Lincoln differed from his opponent in an important regard:

“(Douglas) would make it a rule of political action for the people and all the departments of the government. I would not. By resisting it as a political rule, I disturb no right of property, create no disorder, excite no mobs.”

Lincoln believed that Dred Scott was wrongly decided, so he had no intention of acknowledging it “as a political rule.”

What Trump has done to Robart is similar to what Lincoln did to Taney. Trump has criticized the judge and the decision and has appealed the judge’s ruling, but he has followed the erroneous order in the particular case.  Trump is therefore squarely within the Abraham Lincoln camp on how the president ought to behave as to judges.

Lincoln reiterated his opinion on presidential criticism of judges in his First Inaugural Address. He acknowledged that “some constitutional questions are to be decided by the Supreme Court” and recognized that the Court’s decisions “are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government.” But none of that meant the Court was above criticism:

“At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

"Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.”

Judges make mistakes, and it is vital to our democratic system of government that members of Congress and the president and ordinary citizens be free to criticize judicial decisions that they think are wrongly arrived at.

President Obama indeed wrongly criticized the Supreme Court’s decision in Citizens United during a State of the Union address attended by justices and televised nationally. No one criticized Obama for undermining judicial independence, and it is therefore ridiculous for Posner and others to criticize Trump for doing exactly the same thing as was done by Lincoln and Obama.

American judges have life tenure, they are always addressed as “Your Honor,” and they hear litigant’s cases on a raised bench while wearing black robes. All of this power and pomp and circumstance can go to their heads and can cause them to behave like an oligarchy of privilege.

It is a good and healthy thing for judges to be subjected to criticism so long as judicial orders as to particular litigants cases are followed in that case but challenged in the next case that comes along.

Out of politeness, Trump should not refer to judges as “so-called judges” — but he should be praised, not criticized, for taking on the judicial oligarchy in this country.

Steven G. Calabresi is the Clayton J. and Henry R. Barber Professor of Law at Northwestern University. Mr. Calabresi served as a Law Clerk to Justice Antonin Scalia of the United States Supreme Court, and he also clerked for U.S. Court of Appeals Judges Robert H. Bork and Ralph K. Winter.


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