How the media ignores pattern of Democratic attacks on the courts
“I am from Brooklyn.” That statement made by Senate Minority Leader Charles Schumer was meant to excuse threats he has made against two conservative justices the day before on the steps of the Supreme Court. His “apology” seemed to be a mix of claiming a license for all New Yorkers to use “strong language” and claiming justification because some justices are “working hand in glove” with Republicans. This was like a bizarre road rage defense from a Brooklyn driver who apologizes for the situation but explains that it was all due to the lousy driving of the other guy.
The problem is that this the latest in a pattern of Democratic leaders attacking and threatening jurists if they rule the “wrong” way in certain cases. Although Senate Minority Whip Richard Durbin advised the public “not to dwell” on the comments by Schumer, there is much more to dwell on than just this incident. Indeed, Democratic senators, including Durbin, have made threats against the Supreme Court and the judiciary.
It is certainly true that the media has not dwelled on these attacks, at least not from Democrats. Another New Yorker has used “strong language” to attack jurists, and many of us have criticized President Trump for those comments. Not surprisingly, Schumer has not cited a New York license for Trump to do as he did, perhaps since Trump was born in Queens. Indeed, Schumer recently denounced Trump for criticizing the judge in the trial of Roger Stone. Schumer called on Chief Justice John Roberts to “defend the independence” of the judiciary from such unwarranted attacks.
Roberts did speak out, but against Schumer, not Trump. The reason was, unlike Schumer, Trump did not threaten the judge. The criticism was still highly inappropriate, as many of us said at the time, but was not a threat. It was not Schumer saying that two conservative justices “will not know what hit” them if they “go forward with these awful decisions.”
Schumer was referring to a specific case and warning Justices Brett Kavanaugh and Neil Gorsuch that they “will pay the price” if they rule against his view of the proper outcome. When Roberts condemned that outrageous attack, Schumer criticized Roberts until pressure grew for an apology. Democratic senators opposed censuring Schumer, while Durbin and others also criticized Roberts for publicly rebuking him.
The reckless rhetoric by Trump is always widely covered. Yet much of the media has ignored equally troubling attacks from Democrats. Not long ago, Durbin joined Senators Mazie Hirono, Kirsten Gillibrand, and Richard Blumenthal in a brief written by Senator Sheldon Whitehouse. The brief contained a raw threat that if the justices did not side with New York in a gun rights case, the senators would stack the court with new members. Whitehouse warned the court to “heal itself before the public demands” that it be “restructured in order to reduce the influence of politics.”
By “influence of politics,” Whitehouse meant ruling against the views of Democrats, and he threatened political retaliation in response. In recent presidential debates, Democrats have applauded wildly as candidate after candidate pledged to impose an abortion litmus test on future Supreme Court nominees. For decades now, Democrats have criticized Republicans over suspected abortion litmus tests, denouncing those as an attack on judicial independence and integrity. Democrats have also embraced the “Ginsburg Rule,” whereby nominees refuse to answer specific questions on how they would rule on issues that might come before them.
Democrats now promise to get commitments on how justices will rule, and it is not clear how broad such litmus tests will become with late term abortions or state requirements on licensing for services. Presumably, additional litmus tests will apply to other issues, from religious rights to gay rights, as nominees check off positions like a dim sum menu.
Trump has been denounced widely for referring to “Obama judges,” and Democrats applauded Roberts when he rebuked him by declaring, “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.”
Yet there has been little coverage of or outcry against the attacks by Democratic leaders on “Trump judges” and “Trump justices.” Former candidates have argued in debates over who voted more often against “Trump judges.” Senator Amy Klobuchar boasted of opposing two-thirds of all Trump nominees, but that was still not enough for the liberal group Demand Justice, which expressed disappointment with her.
Somehow it is perfectly fine to suggest that Trump judicial appointees rule on the basis of politics instead of principle. That was evident in the road rage apology of Schumer, who said he had been provoked because Republicans and the courts “working hand in glove” to change the law in areas like abortion. Thus, judges appointed by Democratic presidents are entitled to presumption of independence, while Republican nominees to the courts are regularly denounced as partisan robed robots.
The Framers gave the appointment power to presidents to allow our judiciary to change with society. Presidents throughout history have always used their appointments to shift the ideological divide on the courts. President Obama used his authority to appoint two justices who routinely vote in a bloc with liberal members. What is viewed as simply “correct” in liberals such as Justices Elena Kagan and Sonia Sotomayor, however, is viewed as utterly dishonest bias in conservatives.
During the Kavanaugh confirmation hearings, Whitehouse declared that he uncovered an unmistakable “pattern evidence of bias” by the “Roberts Five.” The five conservative justices often vote as a bloc, he said, and “no Democratic appointee joins them.” He blissfully ignored that on the other side of the divide are four liberal justices who vote as a bloc too.
Sadly, none of this appears to warrant more media coverage or analysis. It appears from that lack of coverage that there is less of a Brooklyn than of a Democratic license when it comes to attacks on the judiciary.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.