How Trump's Criticism of Judiciary Could Complicate Supreme Court Confirmation

The president’s tweets likely to influence Neil Gorsuch's confirmation hearing.

February 09, 2017, 5:14 PM

— -- President Trump's comments about the federal judge who blocked his immigration executive order have raised concerns among members of Congress and could complicate the pending confirmation of Neil Gorsuch to the Supreme Court.

In a tweet over the weekend, Trump referred to Judge James L. Robart of the Western District of Washington as a "so-called judge" after Robart issued a nationwide temporary restraining order on Friday stopping the implementation of the executive order, which barred immigrant and nonimmigrant visa holders from seven countries from entering the U.S., indefinitely suspended the Syrian refugee program and temporarily stopped all refugee admissions to the United States.

The tweet was one of a number pushing back on the decision and voicing concern over the subsequent legal battle. The Department of Justice appealed Robart's decision on behalf of the administration, arguing Tuesday that the restraining order is "vastly overbroad" and an improper judicial encroachment on the authority of the president.

Legal experts said the president's tweets will all but guarantee that the issue of judicial independence is front and center during Gorsuch's confirmation hearing, which has not yet been scheduled.

"I think President Trump really put into play that issue in the context of the hearing," University of Richmond law professor Carl Tobias said. "And I think they [the Democrats] are likely to follow up and ask those kinds of questions."

Gorsuch weighed in on Trump's rhetoric. He used the words "demoralizing" and "disheartening" to describe Trump's comments about the judiciary, according to Sen. Richard Blumenthal, D-Conn., who met with Gorsuch on Wednesday. A spokeswoman for the Trump Supreme Court nomination team later confirmed the content of the meeting.

"While he made clear that he was not referring to any specific case, he said that he finds any criticism of a judge's integrity and independence disheartening and demoralizing," former Sen. Kelly Ayotte of New Hampshire, who is assisting the White House with Gorsuch's confirmation, said in a statement today.

Gorsuch is meeting privately with senators on Capitol Hill all week.

His comments may indicate that he intends to be his own person and exercise the judicial independence that is critical to the federal justice system, Tobias said.

"I think that Neil Gorsuch, like most federal judges, realizes that judicial independence is a keystone to what it means to be a federal judge and why they enjoy life tenure," Tobias told ABC News in email. "I am certain that Neil Gorsuch appreciates that federal judges must be completely free to decide every case on its merits on the law and facts before the judge."

Trump's Comments on the Judiciary

In addition to calling Robart a "so-called judge," Trump put out a batch of tweets related to the case.

What is our country coming to when a judge can halt a Homeland Security travel ban and anyone, even with bad intentions, can come into U.S.?

— Donald J. Trump (@realDonaldTrump) February 4, 2017

I have instructed Homeland Security to check people coming into our country VERY CAREFULLY. The courts are making the job very difficult!

— Donald J. Trump (@realDonaldTrump) February 5, 2017

Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!

— Donald J. Trump (@realDonaldTrump) February 5, 2017

Trump said on Wednesday that the "courts seem to be so political."

"I don't ever want to call a court biased, so I won't call a court biased. We haven't had a decision," he said at a meeting with police chiefs and sheriffs. "But courts seem to be so political. It would be so great for our justice system if they would be able to read the statement and do what's right, and that has to do with the security of our country, which is so important."

During his presidential campaign, Trump repeatedly blasted Judge Gonzalo Curiel, who was presiding over two cases against Trump University and ordered the release of documents related to that case, causing legal experts at the time to worry that the comments could set a dangerous precedent

Trump told The Wall Street Journal in June that Curiel has "an absolute conflict" of interest regarding the cases because of his "Mexican heritage."

Reaction to Trump

Heritage Foundation legal and judicial studies director John Malcolm told ABC News that while it's perfectly appropriate to question a judge's reasoning, it does not do much good to question his legitimacy.

At a press briefing this week Malcolm said of Robart, "He is not a so-called judge — he is a judge. He is as legitimate a judge as President Trump is president."

Sen. Chuck Schumer, D-N.Y., said in a statement over the weekend that by attacking Robart and "testing the Constitution ... Trump raises the bar even higher for Judge Gorsuch's nomination to serve on the Supreme Court."

Sen. Amy Klobuchar, D-Minn., told ABC News' "This Week" that "this has been a pattern with the president," referring to Trump's comments about of Curiel and Sally Yates, who was appointed the acting attorney general by Barack Obama and was fired by Trump shortly after she ordered the Department of Justice not to defend the refugee ban.

The White House said in a statement that Yates "betrayed" the DOJ.

"When he attacks the independence of the judiciary, I think it does focus on the fight before us now," Klobuchar said of the potential Senate battle over Gorsuch's nomination.

Asked whether it was appropriate for the president to question the legitimacy of a judge, Vice President Mike Pence defended Trump, saying, "President Trump's made it clear that our administration is going to put the safety and security of the American people first."

What's Next?

Tobias said he believes that confirmation questioning of Gorsuch "will be sharper than before President Trump made these comments" about Robart and that "they will be very difficult questions to answer."

"When he sits on the Supreme Court, will he exercise an independence in ruling on specific matters that come to the Supreme Court, especially when they involve the branches of government, separation of powers and those types of questions that will inevitably come to the Supreme Court?” Tobias said.

Jeffery Rosen, the president of the National Constitution Center, said he expects Democratic senators to seek reassurance that Gorsuch will uphold the Constitution, regardless of Trump's wishes.

"Judicial independence will be a key theme in the Democrats' questioning," he said.

"Judge Gorsuch's record suggests that he is, indeed, willing to enforce the Constitution in cases where his political and constitutional views diverge," Rosen said, "and his record suggests that he will be able to reassure Democrats of his willingness to check President Trump if the Constitution requires it."

ABC News' Ben Siegel, Arlette Saenz, Jack Date and James Hill contributed reporting to this story.

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