The Washington PostDemocracy Dies in Darkness

Opinion Trump made a baseless attack on two Supreme Court justices. Here’s why he did it.

Supreme Court Justices Ruth Bader Ginsburg, left, and Sonia Sotomayor take part in a panel discussion celebrating Sandra Day O'Connor, the first female Supreme Court justice, at the Library of Congress in Washington on Sept. 25, 2019. (Jacquelyn Martin/AP)

President Trump is treating the judiciary the way he treats the media. But the harm created by these attacks could be far greater.

In 2016, CBS “60 Minutes” correspondent Lesley Stahl asked Trump off camera why he persisted in going after journalists. In one of those sporadic moments in which he reveals the raw truth, Trump replied, according to Stahl, “I do it to discredit you all and demean you all, so when you write negative stories about me, no one will believe you.”

That’s just what Trump did the other day, and what he has been doing for some time, with judges. We all remember Judge Gonzalo P. Curiel, the federal district judge in San Diego who handled the case against the president’s now-defunct Trump University. Trump derided the Indiana-born Curiel as having an “absolute conflict” because he was “Mexican” (and thus “a hater of Donald Trump”). More recently, Trump went after Judge Amy Berman Jackson, who presided over the trial of felonious presidential friend Roger Stone. Trump claimed she was biased because she supposedly put another of his criminal associates, former Trump campaign manager Paul Manafort, in solitary confinement. (She didn’t.)

The Trump administration blocked a CNN correspondent from attending an open media event. That's an assault on press freedom. (Video: Erik Wemple, Danielle Kunitz/The Washington Post)

Now, even more ominously, Trump has turned his fire on the Supreme Court. In tweets and in a bizarre news conference in India, he demanded that two justices — Ruth Bader Ginsburg and Sonia Sotomayor — refrain from ruling on all things Trump. “Both should recuse themselves on all Trump, or Trump related, matters!” he tweeted.

The demand was a sham. The right way to seek recusal is with a motion, filed by lawyers, in court, laying out precise legal arguments. But Trump won’t do that with the justices, just as he didn’t do it with Curiel. No competent Supreme Court practitioner — be they Trump’s private counsel, or the solicitor general representing him in his official capacity — would ever file it.

Because any such motion would be meritless. Trump’s charge against Sotomayor was based on an opinion that he clearly hadn’t read and didn’t understand. The case didn’t involve Trump personally but the administration’s effort to tighten immigration rules. The justices, lifting a stay imposed by a lower court, allowed the new “public charge” rule to take effect; Sotomayor disagreed.

Her dissent didn’t mention Trump, and it didn’t even deal with the merits of the dispute. The opinion drily addressed the procedural standards for granting stays and observed, correctly, that “the Government has recently sought stays in an unprecedented number of cases.” The harshest thing Sotomayor said about the administration was that, “with each successive application, of course, its cries of urgency ring increasingly hollow.” That’s pretty tame stuff. It’s simply not bias for a judge to explain her reasoning in a dissent.

As for Ginsburg, Trump resurrected a years-old beef. In 2016, in an interview with the New York Times, Ginsburg expressed horror at the idea of a Trump presidency. “I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president,” she said. On CNN, she called Trump a “faker” with “no consistency about him” and expressed surprise that the media hadn’t pressed him harder to release his tax returns. Ginsburg’s characterization of Trump was an understatement, but as a sitting justice, she shouldn’t have said it. Her remarks were damaging to the court, and she later expressed regret.

Ginsburg’s comments present a much stronger case for recusal than Sotomayor’s dissent. Trump’s tax returns figure prominently in a trio of cases to be heard by the Supreme Court in March. Still, her now four-year-old remarks don’t require her to step aside. They touched upon Trump’s taxes, but they concerned the media’s stance during the 2016 campaign, not any legal obligation to produce them in response to the subpoenas now before the justices.

President Trump said in New Delhi on Feb. 25 it was "highly inappropriate" for Supreme Court Justice Sonia Sotomayor to criticize his administration on Feb. 24. (Video: Reuters)

Beyond this, the fact that a judge may not particularly care for a litigant (to say the least) doesn’t mean she can’t hear a case involving him; what matters is whether she can put personal feelings aside. Judges certainly have political connections and strong political views, but that doesn’t mean they can’t rise above politics when they hear cases. We expect them to, and the law presumes they do. To follow Trump’s logic, Justices Neil M. Gorsuch or Brett M. Kavanaugh should recuse themselves from the cases involving him because they owe their Supreme Court seats to him. That can’t be right.

Still, Trump persists in his assault on judges for essentially the reason he continues to attack the media: to discredit and demean the courts, so that when they rule against him, no one will believe, or perhaps obey, them.

In doing so, he attacks more than individual judges; he shows contempt for the rule of law. It is a dangerous thing for the country to have a man whose office charges him with faithfully executing the law instead so brazenly seek to undermine respect for it.

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