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Trump and The Courts: Presidential Attacks On The Courts Have A Long History

February 26, 2017

The guys who came before Trump didn’t have Twitter, but they found ways to make it clear.

When President Trump called Senior District Court Judge James Robart “this so-called judge” after the issuance of an order temporarily restraining Trump’s executive order on immigration, the response from all sides of the political spectrum was immediate and alarmed. It was called “bone-chilling” and “authoritarian.” Some even compared Trump to Hitler.

However, it was not only relatively mild for Trump but positively tame in comparison with past conflicts between presidents and judges. Even so, Trump might want to consider history before he follows the lead of his judge-trashing predecessors. Article III, the part of the Constitution that gives judges their power, is designed for days (and presidents) like this. It is why presidents have largely found that attacking judges did more to destroy their own credibility than that of their judicial antagonists.

Undeterred by the firestorm over his criticism of Robart, Trump then attacked the three-judge appellate panel after the 9th Circuit hearing as “disgraceful” and described the hearing a “sad day” for the United States. In a particularly curious distinction, Trump added, “I won’t say the court was biased. But so political.”.

While these comments were unfounded and decidedly unhelpful to the government case, they are not necessarily outside of the norm for presidents in criticizing judges. In 2010, President Obama criticized the justices sitting in front of him at the State of the Union for their ruling in Citizens United v. Federal Election Commission

The courts and the presidency developed certain rules of engagement that have served both well. Judges learned to stay out of politics, while presidents learned to avoid personal attacks on judges.

If Trump continues his battles with judges, he could still prevail, but he should always remember that judges get the last word, even if he thinks they are wrong. As Justice Robert H. Jackson wrote in a 1953 Supreme Court decision, “We are not final because we are infallible, but we are infallible only because we are final.”

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter @JonathanTurley... (more)

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