Dissing the judiciary: Guess who doesn’t grasp the separation of powers

    This still image taken from United States Courts shows Judge James Robart listening to a case at Seattle Courthouse on March 12

    This still image taken from United States Courts shows Judge James Robart listening to a case at Seattle Courthouse on March 12

    What does it say about our commander in tweet that he voices more respect for the Russian thug than for the American judges who protect our Constitution?

    I won’t bother to parse Trump’s moral-equivalence claim that we’re no better than Russia (“you think our country is so innocent?”). I’ll happily cede that task to veteran conservative commentator John Podhoretz. He says that Trump’s attempt this weekend to put us on a par with Putin is “one of the most disgusting things any president has ever said on any subject ever — something that is at once untrue, unserious, unpatriotic, unprincipled, and unthinkable.” Thank you, conservative.

    If only Trump was as dewy-eyed about our judges here in America. You know, the people who stand up for our founding document and enforce the separation of powers.

    But alas, no.

    On Friday, after U.S. District Judge James Robart put the brakes on Trump’s travel ban — the executive order that bars entrants from seven Muslim countries that have no track record of terrorism in America; the order that exempts Muslim countries where Trump has business interests — Trump had several options. The best was to quietly appeal the ruling … nah. The best was to leave Robart alone … nah.

    But dissing this judge was a tad tricky. Trump couldn’t malign Robart as a Mexican, like he did last year with Judge Curiel in the Trump University con job case, because Robart is white. He couldn’t paint Robart as a partisan Obama appointee, because Robart was appointed by George W. Bush. He couldn’t slime Robart as a polarizer, because Robart was confirmed in the Senate by a vote of 99-0. He couldn’t impugn Robart’s creds, because — in the words of Republican Sen. Orrin Hatch, at the confirmation hearing — “Mr. Robart’s impressive credentials are reflected in his unanimous American Bar Association rating of Well Qualified.”

    So instead, Trump called Robart a “so-called judge.” That’s weak, but it signals anew that the aspiring strongman can’t abide institutional checks on the authoritarian power he seeks to wield. Having never spent a day in public office, he has no concept of the separation of powers. He doesn’t respect, or grasp, the core values of democratic governance. He thinks that judges (and journalists) should function solely as rubber stamps — and he rants when they refuse to knuckle under.

    Shifting the courts, staffing them with judges who will echo his will, is a long process that will likely take years. That can’t possibly sate his thirst for instant gratification. Why can’t he have what Putin has right now?

    When critiquing Trump, I need never quote a liberal or a Democrat; lots of Republicans are already hip to his act. In the words of Jack Goldsmith, a high-ranking Justice Department official under George W. Bush, “Trump’s serial attacks on judges and the judiciary take us into new territory.” In the words of Republican Sen. Ben Sasse of Nebraska, speaking yesterday on ABC News, “We don’t have ‘so-called’ judges … We have people from three different branches of government who take an oath to uphold and defend the Constitution.”

    Indeed, commentator Peggy Noonan, the former Reagan-Bush speechwriter who’s wired into the GOP, writes in The Wall Street Journal: “There was no Republican in Washington — not one, on the Hill or within the party structure — who did not privately call the [executive] order a disaster … The handling of the order further legitimated the desire of many congressional Republicans to distance themselves from the president, something they feel they’ll eventually have to do anyway, because they know how to evaluate political horse flesh, and when they look at him they see Chief Crazy Horse.”

    Crazy Horse’s lawyers are appealing Judge Robart’s temporary halt to the ban — the court battle has barely begun — contending that Trump “should have the unreviewable authority” to bar whoever he wants from entering the United States; and that any judge who refuses to bow to that authority “second-guesses the President’s national security judgment.”

    Well, excuse Robart for trying to do his job, fulfilling what he calls his “constitutional role.”

    The judge blocked the ban nationwide, pending further argument, after becoming convinced that the executive order, by wreaking havoc with “family relations and freedom to travel” (among other things), might well imperil “the operations and missions of … public universities and other institutions of higher learning, as well as injury to the state’s operations, tax bases, and public funds.”

    The Bush appointee weighed the states’ demonstration of “immediate and irreperably injury” against Trump’s argument of a dire national security threat — and wasn’t swayed by the latter. He duly noted that no attacks in the U.S. have ever been perpetrated by anyone from the seven nations named in the ban; in short, he said, Trump’s ban needs to be “based in fact, as opposed to fiction.”

    And this was the key passage in his ruling, the equivalent of laying down a marker:

    “Fundamental to the work of this court is a vigilant recognition that it is but one of three equal branches of our federal government … The work of the Judiciary, and this court, is limited to ensuring that the actions taken by the other two branches comport with our country’s laws, and more importantly, our Constitution.”

    Trump would do well to read those sentences. Trace the words with his finger, move his lips — whatever works. Maybe he’ll learn something.

    Follow me on Twitter, @dickpolman1, and on Facebook.

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