Oh, there is method to this seeming madness of President Trump in his latest war — this time not against the press, but against the nation’s judiciary. Make no mistake, Trump chooses his battles carefully, and his choice to disparage yet another institution critical to a well-functioning democracy is no idle rant. It is designed to weaken public trust — this time in the third branch of government.
“It’s a terrible thing when judges take over your protective services, when they tell you how to protect your border. It’s a disgrace,” Trump rambled in a call to a US general in Afghanistan on Thanksgiving Day. “It’s a disgrace.”
Yes, generally such calls are made to thank the troops for their service so very far from home. But not this year and not this president.
It was day three of Trump’s raging against the judiciary — touched off this time by the ruling by US District Court Judge Jon Tigar that blocked an administration order to deny asylum to migrants not crossing into the US at legal border crossings. As Tigar wrote, “Whatever the scope of the president’s authority, he may not rewrite immigration laws to impose a condition that Congress has expressly forbidden.”
Trump fired back, “This was an Obama judge. And I’ll tell you what, it’s not going to happen like this anymore.” He railed in particular against the US Court of Appeals for the Ninth Circuit (where the case will probably go next) repeatedly over the next several days — as he has before. But it was the Trump’s reference to “an Obama judge” that caused Chief Justice John Roberts to issue an unusual rebuttal through the high court’s public information office.
“We do not have Obama judges or Trump judges, Bush judges, or Clinton judges,” Roberts said. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
Roberts, an appointee of President George W. Bush, sought to deliver a similar message in the wake of the divisive confirmation hearings for Justice Brett Kavanaugh.
“Our role is very clear,” Roberts said back then. “We are to interpret the Constitution and laws of the United States, and to ensure that the political branches act within them. That job obviously requires independence from the political branches.”
It’s the sort of subtlety utterly lost on this president. And not to confuse Trump with some dreadfully inconvenient facts, but his administration has lost important court battles in venues from coast to coast and in the courtrooms of judges some of whom go back as far as the Reagan era. Most recently, it was a George W. Bush appointee, US District Court Judge Dana M. Sabraw in California, who lit into the administration for the disaster that was the family separation policy at the border, and Trump appointee Timothy J. Kelly, sitting in federal court in Washington, D.C., who helped restore the White House press pass of CNN reporter Jim Acosta.
And it is the latter case that demonstrates the game that is truly afoot in Trump’s continual disparagement of his two least favorite institutions.
As a former chief justice, Warren Burger, once said, “Journalistic independence and judicial independence have served for two centuries to maintain our unique American system of ordered liberty.” He also noted that “any force that can destroy the one can probably destroy the other.”
Sobering words indeed.
There is surely no mystery about why Trump has labeled the press the “enemy of the people.” Now he has turned his sights on the judiciary, disparaging not simply his favorite bete noir, the Ninth Circuit, but implying that “Obama” judges are incapable of applying the law without “fear or favor.” The danger would be in letting such a base lie remain unchallenged. Roberts saw that clearly and acted accordingly. The rest of us should learn from his example.