WASHINGTON — Judge Neil M. Gorsuch, President Trump’s nominee for the Supreme Court, privately expressed dismay on Wednesday over Mr. Trump’s increasingly aggressive attacks on the judiciary, calling the president’s criticism of independent judges “demoralizing” and “disheartening.”
The remarks by Judge Gorsuch, chosen by Mr. Trump last week to serve on the nation’s highest court, came as the president lashed out at the federal appellate judges who are considering a challenge to his executive order banning travel from seven predominantly Muslim countries. The president called their judicial proceedings “disgraceful” and described the courts as “so political.”
Those remarks followed Mr. Trump’s weekend Twitter outburst in which he derided a Seattle circuit court judge who blocked his travel ban as a “so-called judge” whose “ridiculous” ruling would be overturned.
The podcast that makes sense of the most delirious stretch of the 2016 campaign.
Judge Gorsuch expressed his disappointment with Mr. Trump’s comments about the judiciary in a private conversation with Senator Richard Blumenthal, Democrat of Connecticut, as he paid courtesy calls on Capitol Hill to build support for his confirmation. An account of the discussion was confirmed by a White House adviser working to advance the Gorsuch confirmation, who spoke on condition of anonymity because he was not authorized to comment.
The spectacle of a Supreme Court nominee breaking so starkly with the president who named him underscored the unusual nature of Mr. Trump’s public feud with the judiciary. Speaking to a group of sheriffs and police chiefs on Wednesday, the president said the appellate judges had failed to grasp concepts even “a bad high school student would understand.”
“This is highly unusual,” said Michael W. McConnell, a former federal judge who directs the Constitutional Law Center at Stanford University. “Mr. Trump is shredding longstanding norms of etiquette and interbranch comity.”
Presidents have traditionally tried to refrain from even appearing to intervene in court cases that concern them or their policies, or from impugning the motives and qualifications of jurists charged with deciding them, according to judges and legal experts from across the political spectrum. The tradition is important to preserving the separation of powers that is a pillar of American democracy, establishing an independent judiciary to serve as a check on the executive branch, they argued.
Mr. Trump’s rhetorical battle with the judiciary may also end up harming his cause in a case that may end up before the Supreme Court, by potentially stiffening the resolve of judges who feel their independence is under attack.
Mr. McConnell called Mr. Trump’s comments “extremely self-defeating and self-destructive” because of their potential to sway judges to rule against Mr. Trump.
“Judges who hear criticism of this sort are not going to be inclined to knuckle under; it’s going to stiffen their spines to be even more independent,” said Mr. McConnell, who was nominated to his judgeship by President George W. Bush.
Jeffrey Rosen, the president of the National Constitution Center, a nonprofit organization in Philadelphia devoted to explaining the Constitution, said there was a rich history of presidents strongly criticizing judges on matters of law.
“But those criticisms were based on constitutional disagreements about the rulings, and it’s hard to think of a president who has challenged the motives of specific judges by name repeatedly, especially before a case is decided, or used the same kind of invective as Mr. Trump has toward the court,” Mr. Rosen said.
“Judicial independence is a fragile and crucial achievement of American constitutionalism,” he added, “and it depends on the public seeing the judiciary as something more than politicians in robes.”
Yet Mr. Trump, who as president has the power to nominate members of the federal judiciary, appears bent instead on portraying independent judges who hold the fate of his travel ban in their hands as partisans who refuse to give him the power to which he is entitled to protect the nation.
“I don’t ever want to call a court biased, so I won’t call it biased,” Mr. Trump said on Wednesday. “But courts seem to be so political, and it would be so great for our justice system if they would be able to read a statement and do what’s right.”
Mr. Trump, who opened his remarks to law enforcement officers reciting the passage of the United States code that gives the president the power to restrict immigration whenever he deems the influx of foreigners detrimental to the country, said he had watched “in amazement” Tuesday night as a three-judge federal appeals panel heard arguments on his executive order and the limits of presidential power in cases of national security.
“I listened to a bunch of stuff last night on television that was disgraceful,” Mr. Trump said. “I think it’s sad. I think it’s a sad day. I think our security is at risk today.”
His comments came the morning after a lively, roughly hourlong hearing — the audio of which was carried live on national television — during which three judges on the United States Court of Appeals for the Ninth Circuit expressed skepticism about the arguments of a Justice Department lawyer defending Mr. Trump’s order.
Judge James L. Robart of the Federal District Court in Seattle blocked the travel ban on Friday, and the appeals court is considering whether to uphold that action, with a ruling expected as early as Thursday.
Mr. Trump took aim at one of the judges without specifying which, saying, “I will not comment on the statements made by, certainly one judge.”
The panel was made up of Judge William C. Canby Jr., appointed by President Jimmy Carter; Judge Richard R. Clifton, named by Mr. Bush; and Michelle T. Friedland, nominated by President Barack Obama.
“If these judges wanted to, in my opinion, help the court in terms of respect for the court, they’d do what they should be doing,” Mr. Trump said. “It’s so sad.”
By contrast, he lavished praise on Judge Nathaniel M. Gorton, a federal district judge in Boston who last week ruled that the travel ban could stay in place. “Right on — they were perfect,” Mr. Trump said of Judge Gorton’s comments.
Mr. Trump is hardly the first president to criticize or seek to apply pressure to the courts; Mr. Obama admonished Supreme Court justices as they sat before him in the House chamber during his 2010 State of the Union address for their ruling in the Citizens United v. Federal Election Commission case that allowed corporations to spend freely to influence elections.
John Yoo, a former counsel to Mr. Bush, argued that Mr. Trump was using a potent weapon that has been used throughout history — the presidential prerogative to provoke a constitutional crisis when a vital issue is at stake — on an insignificant matter.
“I hate to see a president waste that kind of authority, which should only be deployed for our most important questions, on this immigration order, which the president could easily withdraw, fix and resubmit,” said Mr. Yoo, now a law professor at the University of California, Berkeley. “President Trump is pressing the accelerator down to 120 miles per hour on every single issue. He will exhaust himself and exhaust his presidency.”
Peter Wallison, a former White House counsel to Ronald Reagan, said the president often wished to weigh in on legal matters concerning personal friends or issues important to his administration, and Mr. Wallison always advised against it, both to protect the tradition of judicial independence and avoid undercutting the courts’ legitimacy.
“It’s not illegal, it’s not a violation of the law to say these things, but it’s bad policy because it raises questions about the independence of the courts, and it raises questions about the judicial system as a whole when the president says this,” Mr. Wallison said. Mr. Reagan did not always take his advice, he added, and in those instances, “I always cringed.”
Mr. Trump defended the process that yielded the executive order, saying he had initially wanted to wait a week or even a month before issuing the travel ban. But he said he was told by law enforcement officials that doing so would prompt a flood of people, including some with “very evil intentions,” to rush into the United States before the restrictions took effect.
That account appears to be at odds with the one given by several senior officials, who have said they were not fully briefed on the details of Mr. Trump’s order until the day the president signed it at the Pentagon.
On Wednesday, Mr. Trump told the law enforcement officers that he was acting solely out of a concern about terrorism, a threat he said had deepened since he took office and gained access to information about the risks facing Americans.
“Believe me, I’ve learned a lot in the last two weeks, and terrorism is a far greater threat than the people of our country understand,” Mr. Trump said. “But we’re going to take care of it. We’re going to win.”
Published at Thu, 09 Feb 2017 01:54:48 +0000