The president addressed the debacle in his 2010 State of the Union address, in the presence of the Supreme Court justices who decided the case. He began his comments with a phrase that had not appeared in the prepared text, “With all due deference to separation of powers.” Then he let loose:
“Last week, the Supreme Court reversed a century of law that I believe will open the floodgates for special interests — including foreign corporations — to spend without limit in our elections. I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people, and I’d urge Democrats and Republicans to pass a bill that helps correct some of these problems.”
Obama had previously criticized the ruling in one of his weekly radio addresses, stating:
“I can’t think of anything more devastating to the public interest. The last thing we need to do is hand more influence to the lobbyists in Washington, or more power to the special interests to tip the outcome of elections.”
He continued later:
“We don’t need to give any more voice to the powerful interests that already drown out the voices of everyday Americans, and we don’t intend to.”
That was his personal opinion — and the opinion of millions of Americans, many of whom were his supporters — and he had every right to voice it. Furthermore, he did so by confining his displeasure to the ruling itself and not impugning in any way the character or qualifications of the justices who rendered it.
And yet, condemnation of Obama was swift and brutal from some quarters.
You could argue that the venue of the State of the Union was not the appropriate one for Obama to repeat his criticism. But it is impossible to argue that his judicial rebuke, which looks quaint in retrospect, comes anywhere close to the venom Donald Trump is spewing at the judicial branch.
You could argue that Obama’s criticism carried more weight because it was aimed at the highest court. But Trump’s treatment of federal judges is worse. He’s punching down. He’s using the awesome power of the presidency to lob highly injurious and personal accusations at public servants below his station. The Supreme Court is on parity with the presidency; federal judges aren’t. This is the behavior of a bully.
As a candidate, Trump claimed that the federal judge Gonzalo P. Curiel shouldn’t be able to preside over his Trump University fraud case because, as Trump put it:
“I’m building the wall, I’m building the wall. I have a Mexican judge. He’s of Mexican heritage. He should have recused himself, not only for that, for other things.”
This of course was a lie. Curiel is an American citizen born in East Chicago, Ind.
Last week, when a federal judge ruled against his Muslim ban, Trump lashed out on Twitter (where else?):
“The opinion of this so-called judge, which essentially takes law enforcement away from our country, is ridiculous and will be overturned!”
The next day, Trump again took to Twitter:
“Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!”
On Wednesday, while speaking to a gathering of police chiefs, Trump again lashed out at the court and the appeals process, reading a section of law and sniping, “A bad high school student would understand this.”
Trump should know. As a child, he got into so much trouble and became such an embarrassment to his parents that they sent him up the river, quite literally, to a military academy in the Hudson Valley for high school.
This constant, lowbrow attack on the courts is not an insignificant thing and not without consequence. And it is a major break from the way modern presidents have related to and dissented from the opinions of the judicial branch.
The New York Times’s Adam Liptak spoke with Peter G. Verniero, a former justice of the New Jersey Supreme Court, after Obama’s 2010 State of the Union, and Liptak reported the exchange this way:
“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,” Mr. Verniero said. “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.”
Neil M. Gorsuch, Trump’s own nominee for the Supreme Court, condemned the president’s attacks on the judges as “demoralizing” and “disheartening.”
In the same way and for the same reason Trump is attacking the press, he is attacking the courts: They are the only real checks on his power and raging ego, while most congressional Republicans sit on their hands and swallow their pride.
The only courts or press that Trump sees as legitimate are those that bow to his will. All others are fake, very, very dishonest, unfair or some such. Trump’s intent here is to besmirch the means and motives of his opponents, to drag them down from their perches of principle, to make them more vulnerable to grievous political injury.
He always wants to grind the opposition underfoot. This is how democracy slips away, not always by a singular eruption, but sometimes by slow, constant erosion, the way the river carves itself into the rock.
This is not the behavior of a man who respects the independence of the judiciary or who grants any “deference to separation of powers,” as Obama improvised in 2010. This is a tyrant who sees power as a zero-sum game: The exercise of it by another branch means diminution of his own.
He doesn’t want to be president, but emperor.
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