When a president tweets insults at a Hollywood star, the dignity of his office is tarnished. When a commander in chief uses Twitter to attack a loyal military ally, America’s friends across the globe become unsettled. But when a president uses social media to question the legitimacy of a federal judge following an inconvenient (and temporary) outcome, that is simply unacceptable. From Marbury v. Madison to United States v. Nixon, our federal courts’ power to interpret the Constitution has been sacrosanct. As Chief Justice Warren Burger wrote in U.S. v. Nixon, the concept of checks and balances endures because it has remained (to quote Marbury) “the duty of the judicial department to say what the law is.”
America’s new president may not care about upholding the traditions of his office. He also may recklessly disregard his predecessors’ tireless work to build vital global alliances. But when the president tries to undermine the legitimacy of the federal judiciary, he must be told in short order that the White House is picking a fight it will not win. For the sake of the country, let us hope the attacks on “so-called” Judge James Robart were merely reckless and not politically calculated. Because speeding further down that path would end in an ugly constitutional crash.
I have been, and remain, skeptical of Trump critics who spend their waking hours lathering in outrage porn. Their insistence that the former reality-TV host is an autocratic tyrant capable of unraveling America’s elaborate system of checks and balances is laughable. Madison and Hamilton’s constitution is alive and well nearly 230 years after its adoption, and you can bet your last dollar that it will still be thriving the day Trump leaves office. While left-wing warnings about freedom’s flame being extinguished are as tiring as right-wingers declaring the death of freedom daily during the Obama age, this presidency demands vigilance to ensure that history will remember these partisan threats as empty.
Trump comes to office without the kind of political, military or legal background that would inform him on the importance of judicial independence. President Barack Obama leveled a shameful attack on the Supreme Court during a State of the Union address, but he never questioned the court’s authority to rule the way it did. Working the ref is one thing. Suggesting the ref’s calls should be ignored is quite another.
During his impeachment battle, President Bill Clinton and his wife lashed out at congressmen, senators, news anchors, talk show hosts, newspaper editors and members of the “vast right-wing conspiracy.” The Clintons counter-punched their accusers and engaged in a no-holds-barred battle for the presidency. But when the Supreme Court disbarred Bill Clinton from practicing law before that court, the president was more measured. He showed similar restraint after the Arkansas Supreme Court suspended his law license as well. Clinton the lawyer knew, even during his darkest political days, that fighting the judiciary was a battle that presidents should avoid. President Richard Nixon recognized that truth as well even in the final days of his presidency. Within days of the Supreme Court demanding the president turn over the tapes that would force him to resign, Nixon relented.
These presidents recognized the bright constitutional boundaries that limited their power even during existential political crises. But this weekend, Trump took a reckless and unnecessary shot at a federal judge on the basis of a temporary ruling. It is yet another unforced error from a president who keeps stepping on his own good headlines while stirring deep unrest among political friends and foreign allies. As the White House improves its internal decision-making process, West Wing staffers would do the country and world a great service if it could somehow apply a similar discipline to the president’s Twitter feed.