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News-Sentinel.com Your Town. Your Voice.

Trump's fight with judges is the best reason yet to cheer his victory

Former President Barack Obama greets Supreme Court Chief Justice John Roberts following a State of the Union Address. Obama's criticism of the court during his 2010 address drew a reaction from Justice Samuel Alito, left, that sparked a debate about the proper relationship between the federal government's executive and judicial branches. (AP photo)
Former President Barack Obama greets Supreme Court Chief Justice John Roberts following a State of the Union Address. Obama's criticism of the court during his 2010 address drew a reaction from Justice Samuel Alito, left, that sparked a debate about the proper relationship between the federal government's executive and judicial branches. (AP photo)
Copyright 2014 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.The Associated Press
Friday, February 10, 2017 09:01 pm
"I can't recall a president taking a swipe at the . . . court like that," said Lucas A. Powe Jr. of the University of Texas Law School. "The court's legitimacy is derived from the persuasiveness of its opinions and the expectation that those opinions are rendered free of partisan, political influences. The more that individual justices are drawn into public debates, the more the court as an institution will be seen in political terms, which was not the intent of the founders," warned Peter Verniero, former New Jersey Supreme Court justice.

"Inappropriate," agreed Sen. Russ Feingold, D-Wis.

Reaction to President Donald Trump's war against judges who have at least temporarily blocked his effort to limit the flow of refugees and immigrants from some mostly Muslim countries? Nope: They were responding to President Obama's excoriation of the Supreme Court justices attending his 2010 State of the Union address for their decision in the Citizens United vs. Federal Elections Commission case that removed some limits on campaign contributions.

All of which proves at least two things: Although Trump's rhetoric has been characteristically blustery, his clash with the courts is not the unprecedented constitutional threat opponents would have you believe. And;

The totally predictable battle should remind conservatives who couldn't bring themselves to vote for Trump what was really at stake in his campaign against Hillary Clinton.

In his criticism of the week-old Citizens United case in the presence of the very people who rendered the decision, President Obama suggested the verdict would "open the floodgates for special interests, including foreign corporations, to spend without limit in our elections."

Justice Samuel Alito shook his head and appeared to mutter "Not true."

The tension between the federal government's executive and judicial branches has not always been as obvious, but Obama was not the first president to criticize the courts and Trump will not be the last. In 1937 for example, President Franklin Roosevelt was so angry with the Supreme Court's opposition to some of his New Deal agencies he unsuccessfully proposed expanding the court to as many as 15 judges — the majority of whom would presumably support his policies. And in 2004, President George W. Bush took aim at "activist judges (who) have begun redefining marriage by court order." Presidents who take office believing they are the "most powerful person in the world" are inevitably frustrated when they learn their power is limited. It's as natural for presidents to challenge the courts as it is for judges to defend their independence.

It is both fitting and beneficial that this battle is being waged now, during the process of selecting a replacement for the late Justice Antonin Scalia. Although there is no guarantee nominee Neil Gorsuch would overturn the decisions of U.S. District Court Judge James Robart and the reliably liberal 9th Circuit Court of Appeals, Gorsuch is by all accounts a jurist to respects the Constitution as it is written, not as he wishes it to be. That's important, because he would represent the tie-breaking vote between the court's four-member conservative and liberal wings.

In the case of Trump's temporary travel ban the distinction between those camps is stark: The Appeals Court opinion cited the importance of the "free flow of travel, in avoiding separation of families and the freedom from discrimination." The Trump administration insists the Constitution and law give the president broad authority over national security, which was the justification for the executive order seeking to prevent terrorism.

I'm no lawyer, but Harvard Law Professor Alan Dershowitz is. Hardly a conservative, Dershowitz dismissed the 9th Circuit's decision as "not a solid decision . . . that looks like it's based more on policy than on constitutionality."

Added CNN legal analyst Paul Callan: “I think what has surprised all the lawyers who have looked at this decision is that what the court said here is that the state of Washington, because it brings students into its universities, it brings customers into its restaurants, is the representative of virtually anybody across the world who’s not an American citizen. And it extends, in some respects, the constitutional rights of Americans . . . to the world."

Trump, clearly, rejects such idiocy. Whether the Supreme Court ultimately agrees could depend on whether the Republican-controlled Senate puts Gorsuch on the court, and Trump can somehow muster the patience to delay the fight until they do.

This column is the commentary of the writer and does not necessarily reflect the views or opinions of The News-Sentinel. Email Kevin Leininger at kleininger@news-sentinel.com or call him at 461-8355.



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