In his first two weeks in office, President Donald Trump has shown an alarming disregard for the courts and the constitutional limits on his power. He has banned refugees and Muslims from certain countries; fired an attorney general; possibly profited from his presidency; threatened to block funding to jurisdictions that limit entanglement between local police and federal immigration enforcement; and questioned the legitimacy of U.S. District Court Judge James Robart, who temporarily halted his Muslim ban.
The president referred to Judge Robart, appointed by President George W. Bush, as a “so-called judge.” Trump suggested Judge Robart would be responsible if a terrorist attack were to occur: “If something happens blame him and court system.” There were also reports of federal officials refusing to obey earlier court orders pertaining to the Muslim ban, including an order protecting the right to counsel for lawful permanent residents.
President Trump’s attacks on judges undermine judicial independence—the very foundation of a coequal branch of government. Under the Constitution’s separation of powers, the courts define the constitution and its limits on the authority of the other branches of government. Since the president’s party controls Congress, the courts will be crucial to ensuring that Trump does not violate the Constitution.
In these circumstances, the American people may have a hard time trusting President Trump to make a lifetime appointment to the U.S. Supreme Court. Senate Minority Leader Chuck Schumer (D-NY) warned that Trump’s attack on Judge Robart “shows a disdain for an independent judiciary that doesn’t always bend to his wishes and a continued lack of respect for the Constitution, making it more important that the Supreme Court serve as an independent check on the administration.”
President Trump has a pattern of questioning the legitimacy of judges whose rulings he does not like. For example, Trump claimed that a Mexican American judge could not be unbiased in a case involving him, due to his ethnic heritage.
How would President Trump’s Supreme Court nominee, Judge Neil Gorsuch, respond to attacks on judicial independence? A blogger for the American Constitution Society recently asked, “If Trump is so easily angered by a judicial ruling … what is likely the most important criterion Trump has for his judicial nominees? Loyalty.” Trump advisor Roger Stone similarly said that the president needs “a supportive court … Not a conservative court, not a right-wing court—a Trump court.”
So many legal questions have been raised about President Trump’s earliest actions that the president should expect at least some court rulings against his administration. Legal experts are asking how Trump might react.
The framers of the Constitution understood that the president and Congress may not like some court rulings, so they set up a system that mostly insulates federal judges from political pressure. But President Trump could find ways to lash out at the courts, if Congress goes along. In several states, politicians have recently tried to defund courts or pack them with conservative judges. The president and Congress could change the number of judges on the Supreme Court or lower courts.
Arizona’s two Republican senators have introduced legislation to create a 12th Circuit Court by breaking up the 9th U.S. Circuit Court of Appeals, based in California. The bill would move Washington state, which includes Judge Robart’s court, into the new circuit, along with more conservative states. A previous bill kept Washington in the 9th Circuit. President Trump would, of course, be responsible for appointing judges to the new court.
A president who has shown little respect for the courts should not be granted broad deference on lifetime judicial appointments. Senators must demand an independent Supreme Court justice, and if a supermajority—at least 66 senators—agrees that Judge Gorsuch satisfies this test, then the American people can be assured that the legislative and judicial branches can serve as a check on a president intent on testing the limits of his power.
Millions of people have flooded the streets and airports to oppose President Trump’s lawless, discriminatory agenda. Trump won only 46 percent of the popular vote in November, and a recent poll found that 55 percent of respondents oppose a Muslim ban. Republican senators paid no political price for their obstruction of President Barack Obama’s Supreme Court nominee, and we cannot now let Trump use the still-vacant seat to ensure a Court that rubber-stamps his administration’s unconstitutional actions.
Michele Jawando is the Vice President for Legal Progress at the Center for American Progress. Billy Corriher is the Deputy Director of Legal Progress at the Center.