Trump undermines the federal judiciary, even as he packs it

Donald Trump responded on Friday to a federal court decision blocking construction of the disputed Keystone XL pipeline by broadly condemning the American judicial system and characterizing its decisions as political – while expressing confidence in the Supreme Court that he has now shaped in his image.

“It was a political decision made by a judge,” Trump said of the pipeline ruling. He was talking to reporters outside his helicopter in what the Washington Post called an airing of grievances and a spewing of insults “at a wide array of targets”.

Trump also expressed contempt for the 9th Circuit Court of Appeals, which blocked his termination of the DACA program on Thursday. “You never win in the 9th Circuit if you’re on this half of the equation — when I say half, it could be half or more,” he said.

He concluded: “So this whole thing, it’s a terrible thing what’s happening with the courts.”

But Trump’s argument — that the federal judiciary cannot be trusted to render justice apolitically — is deeply corrosive to the American democratic system, which relies on the judiciary to be independent of the two other branches of government.

It’s also a common first step from democracy toward authoritarianism.

“You don’t attack judges for their decisions in that way,” said Caroline Fredrickson, president of the progressive American Constitution Society. “Whenever something comes back wrong, in his opinion, it’s because a judge is Mexican, or a ‘so-called judge’,” she said.

In February 2016, Trump attacked U.S. District Court Judge Gonzalo Curiel, who was presiding over two civil fraud lawsuits against the defunct Trump University. “I’ve been treated very unfairly by this judge. Now, this judge is of Mexican heritage, I’m building a wall!” he said. Curiel was born in Indiana to Mexican parents.

When U.S. District Court Judge James Robart blocked enforcement of Trump’s initial Muslim travel ban, Trump tweeted: “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!”

Those are only two of many examples of Trump’s attacking the judiciary.

Fredrickson explained: “People criticize decisions all the time, that’s just a natural thing. But they usually argue with the legal reasoning. Attacking the judge personally, especially when it’s the president doing it, really undermines the status of our judges.”

Trump, she said, is carrying out a two-part strategy to bend judges to his will. “You do it by calling the ones who disagree with you political, and you do it by making the ones who agree with you dominate the judiciary.”

Trump is, in fact, in the process of packing the courts with judges who have to meet a far-right litmus test, and his successful battle to install Justice Bret Kavanaugh, in particular, went a long way to eroding the public’s confidence in a non-political judiciary.

Trump noted on Friday that he is “slowly putting new judges in the 9th Circuit”. He has made a staggering 26 appointments in total to the appeals courts. And the 9th Circuit is considered to be the most liberal of them all.

Article III of the Constitution provides three concrete guarantees of independence for the judicial branch, including lifetime tenure, so they cannot be fired. This review on judicial independence and Trump’s attacks on it, which I helped write for Protect Democracy last year, is a useful resource.

In contrast to his anger over the pipeline decision, Trump expressed satisfaction that the 9th Circuit had issued a ruling blocking him from immediately terminating the Deferred Action for Childhood Arrivals (DACA) program, which protects immigrants brought illegally to the U.S. as children from deportation

“The good news is, by rejecting DACA in the 9th Circuit yesterday, finally, we’ve been waiting for that, we get to the Supreme Court,” Trump said. “And we want to be in the Supreme Court on DACA.”

Trump also on Friday questioned the legitimacy of the ballot counting in Florida, where a margin of less than 0.5 percent separates Republican challenger Rick Scott and incumbent Democrat Bill Nelson. “What’s going on in Florida is a disgrace,” he said, and in a tweet he described the process as a fraud. He also tweeted an accusation of fraud in Arizona, even suggesting: “Call for a new Election?”

Undermining confidence in the electoral process raises the distinct possibility that he, or at least his base, would reject any result that isn’t in the Republican’s favor.

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