Trump better play ball, if he expects to win in court
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When ballplayers trash talk, they trash their opponents. But they also trash the refs and umps.

There’s a reason.

The incomparable Leo Durocher famously said he confronted the umpire – sometimes kicking dirt – “not over this call, but for the next one.”

With a big enough stink, he might get the next play called in his favor. Such is baseball.

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The rules of the road for litigators are different. They may get in the face of adversaries, but (mostly) not in the face of judges. Common sense, after all. And also that judges can fine, sanction and hold lawyers in contempt. But, remember, President Donald TrumpDonald John TrumpGOP senator introduces bill to hold online platforms liable for political bias Rubio responds to journalist who called it 'strange' to see him at Trump rally Rubio responds to journalist who called it 'strange' to see him at Trump rally MORE isn’t a lawyer. He doesn’t have the training or instincts of one – even the most aggressive counsel knows when to pull back. Trump is different: after losing his travel ban case unanimously in the Ninth Circuit he tweeted

 

Trump was boldly telling the judges that they alone would be responsible for any terrorist attack, as would the Supreme Court, should he appeal.

Some judges seem like automatons on the bench — they’re not referees and you (mostly) won’t see an in-your-face screaming match in a courtroom. Judges often appear to lack emotion. They are Star Trek’s Mr. Spock.

In many cases, though, the discipline of a judge is an act designed to make them appear “judicial”;  objective in dealing with cases, and people.  It’s not a bad act – we want judges to be as close to objective as possible.  And the “appearance” of objectivity is profoundly important.

Still,  judges do have feelings. They’re human, just like umpires. If a litigant were to go to the press and say “the judge is an idiot,” would anyone believe that the judge, however unanimated he might appear the next time the case is before him, wouldn’t be at least somewhat affected by the attack?

After all, human beings are only human.

We will likely never know if/how much Trump’s scurrilous tweets and speeches nudged the panel.  They are unrelenting:  “If the U.S. does not win this case . . . we can never have the security and safety to which we are entitled.  Politics!” And, “If you were a good student in high school or a bad student in high school, you can understand this .   .  .”

Did the Court, including George W. Bush-appointee Judge Richard Clifton, conclude that Trump’s intolerable statements warranted a rebuke that would only be meaningful through a unanimous per curiam decision, even if Clifton favored parts of the ban?  Did they rush, or delay, the decision to achieve the best bang from the press?  Is the language and tone harsher, more  pointed?  The focus different?

If one were to ask federal, appointed-for-life, judges if the Ninth Circuit’s ruling was affected by Trump’s harangues, 99 of 100 would say “no.” 

And they would believe it – judges must conclude that the objectivity of the profession will always hold sway – that personal pique and pettiness will always be in check. I suspect that in cases where it isn’t even close – indeed, most cases – judges will decide solely on the law. But when it is a close call, particularly if credibility makes a difference, does the tie go to the credible party?

If a judge needs to make that call, do we really think it will be in favor of the one referring to colleagues as “a so called judge” who rendered a “ridiculous” opinion (Judge James L. Robart) or “unfair”, “totally biased” and a “hater” (Judge Gonzalo P. Curiel). 

Or in favor of the litigant whose advisor goes on national television, with the President’s approbation, saying the “powers of the president to protect our country are very substantial and will not be questioned.”

Parenthetically, and with no disrespect to state judges, one must wonder if Trump’s ability to whip up his tweet-following base might make him in particular more effective. They don’t have life tenure and, if they are in a pro-Trump jurisdiction, will upholding challenges to Trump’s policies make them unelectable next time around?

Machiavellian as Trump and his cadre can be, they may conclude that state court is their next move (if they can garner reason to go that route). And can we be completely sure whipping up the base will never help him in federal court either, especially when judges might become afraid of the possibility of threats to them?

When Barack ObamaBarack Hussein ObamaTrump takes credit for passing veterans bill that passed under Obama Orlando Sentinel declines to endorse Trump in 2020 Progressive activist: Democratic nominee will 'need to ride a little bit to the center' MORE, in his 2010 State of the Union address, criticized the Supreme Court’s decision in Citizens United  while the justices sat front and center, it was rightly controversial – one branch of government dressing down another.

Indeed, in later comments Chief Justice Roberts welcomed criticism, but he also found “troubling” the image of “one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court – according [to] protocol – has to sit there expressionless.”

But troubling as that may have been, Obama’s critique wasn’t personal or threatening. It was a fundamental disagreement on the law.

So, should there be a price to pay for publicly disrespecting judges?  And should it make a difference that Donald Trump is no everyday litigant?  He is the President of the United States, and when the President tells the world that America is no longer safe because of a judicial decision, should he be punished?

If the courts are actually bothered by Trump’s unprecedented attacks on judges, should judges say so?  Should they issue gag orders, warnings, or sanctions – boldly telling Trump and the world that bullying simply won’t work.  Or is it better left unsaid,  so that judges who are at least facially indifferent can decide without the taint of prejudice –  something surely the subject of a next tweet.

Continuing to call the umpire a hack may work in baseball. It simply can’t – and shouldn’t – in court. No fan likes the baseball umpire; but, at day’s end, the Constitution respects the courts – and we live or die with their interpretation of that founding document. 

By the way, next time you’re in traffic court litigating your speeding ticket, call the judge  a hack.  See how that goes.

Joel Cohen, a former state and federal prosecutor, practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. An adjunct professor at Fordham Law School, he regularly lectures and writes on law, ethics and social policy for the New York Law Journal and other publications.


The views expressed by contributors are their own and are not the views of The Hill.