Donald Trump is beginning to learn that old truism of American politics – a president can say do this and do that, but ultimately the power of the presidency is the power to persuade. J. BROOKS SPECTOR takes a look at an increasingly messy tangle that is Donald Trump’s engagement with some feisty judges – and perhaps even the Senate. There are also lessons being learned elsewhere.
Sometimes the fate of a democracy hangs on the most unlikely of things. Back in 1972, in the midst of a presidential campaign, for example, regular guy, night security guard Frank Wills noticed some masking tape over the door lock in a suite of offices in the Watergate office complex that were then the headquarters of the Democratic National Committee. He removed the tape, but then, on a later, second inspection round, he unaccountably found tape there yet again. He called the police who managed to arrest a handful of burglars who, it turned out, were in the pay of the Republican Party. As a burglary, it never made much sense since Richard Nixon was cruising to his second term, while his hapless opponent, Senator George McGovern, was on course to an historic defeat.
Those Watergate burglars appeared before Washington, DC Federal District Judge John Sirica who convinced the burglars to plead guilty after implicating people higher up the food chain who had hired the second-story men to carry out their bizarre burglary.
In point of fact, Sirica was a very unlikely hero for the left, a conservative judge who had been appointed by President Eisenhower (Richard Nixon had been Eisenhower’s vice president, incidentally) over a decade earlier. Moreover, Sirica’s nickname was “Maximum John”, given to him by attorneys who had appeared before him, in light of his proclivity for dishing out the most severe sentences allowable under federal sentencing guidelines to convicted criminals.
Sirica had a second bite at the apple of fame in connection with the Watergate scandal when he ordered the White House to surrender the infamous tape recordings of conversations in the Oval Office. These tapes ultimately led to Nixon’s resignation. And Sirica had become one of the heroes of the entire constitutional crisis that ensued from the original arrest.
Two decades before Judge Sirica’s brush with destiny, President Eisenhower (who apparently had the sense that California Governor Earl Warren would not rock the prevailing political boat in the nation) appointed Warren as the Supreme Court’s chief justice. Despite Eisenhower’s assumptions, however, with Earl Warren in the lead, his appointment heralded a veritable explosion of rulings that rendered segregation unconstitutional and that also ushered in the thorough expansion of civil liberty protections for citizens. Not everything works out as planned.
Now there is the possibility that US District Court Judge James Robart, from his courtroom in Seattle, Washington, may have just become the point guard for the opposition to President Trump’s overstretch as the new president. The president had ushered in a national – and even something of an international – crisis with his executive order that banned travellers from seven Muslim majority nations, a four-month halt to any refugee movements worldwide to the US, and a presumably permanent ban on Syrian refugees entering the country as well. But when lawyers appearing on behalf of the states of Washington and Minnesota appeared before Robart, he promptly issued a temporary halt to the chaotic efforts at airports by immigration officials (and airlines and airports around the world) to prevent people with valid visas or permanent residence permits from those seven nations from entering the US that were the result of this executive order. The Trumpian rhetoric via Twitter essentially said that this “so-called judge” would be responsible for inevitable death and destruction that would be the nation’s fate when terrorists entered the US because of his ruling.
The Trump administration tried to get the judge to set aside his order, then appealed the ruling to the US Federal Circuit Court of Appeals which declined to set it aside either. Instead the two-judge panel ordered both sides to present further arguments this week – on why the restraining order should be upheld or ended. In fact, Robart’s initial decision was similar to various other emergency applications that had been brought to other courts across the country, although his was issued to have effect against the entirety of the executive order – countrywide.
At this point, the appeals court decision has now created a possibility that Trump’s original executive order will be tied up in litigation – taking the wind out of the sails of one of his showcase promises from his campaign for the presidency – for months, if not longer, even if the restraining order is ultimately eliminated. Given the national impact of this question and its implications for several constitutional issues – equal protection under the law and the executive branches’ right to carry out foreign policy and to establish the rules on immigration under congressional delegations of authority – there is a reasonable chance the case will eventually only be settled by the Supreme Court.
A lawyer friend in Washington, wise to the law and federal government, wrote to us about these developments, “The [restraining] order is short and sketchy. Basically, it says that the plaintiffs [the attorneys-general of Washington and Minnesota] had standing to sue, that they were suffering irreparable harm, and that they were likely to succeed on the merits, once the case is fully litigated. Under the circumstances, a temporary restraining order was appropriate. The court didn’t really go into the merits of the matter at all.
“To judge by the talking heads on TV, it is far from clear that the Administration will lose the final case. It’s important to remember that the executive order (EO) is just a temporary ban to review vetting procedures. It’s not a permanent ban. The EO is crazy as policy – the nations selected aren’t a threat, visa vetting is already super-tight, a global (why global?) hold on refugee admissions makes no sense, etc. – but then the Obama Administration argued for years that the government has vast discretion to administer the immigration laws. My hunch is that the courts will uphold the EO — victory for Trump — but that the Administration, badly burned, will back away from a permanent ban —loss for Trump.”
Of course, few things are cut and dried in government policy. There is always the chance to re-litigate things, somewhere. Moreover, few items on anybody’s agenda come to at least a temporary conclusion without affecting yet other things – sort of like gravity with the stars, moons, and planets. Thus, the furore over Trump’s now-infamous, non-Muslim Muslim banning executive order, or whatever White House press spokesman Sean Spicer wants to label it, is now beginning to seep into the president’s nomination of Judge Neil Gorsuch to fill the vacancy left by the death of Antonin Scalia last year.
The nomination already has some controversial aspects to it, not least the Republican-controlled Senate’s refusal in 2016 to even begin the process of considering former President Barack Obama’s earlier nomination of Judge Merrick Garland for that seat – let alone Gorsuch’s extremely conservative positions on any number of issues important to many. Given the executive order’s shadow over the government, in any confirmation hearing by the Senate Judiciary Committee, Gorsuch is almost certain to be grilled over his views on the restraining order, and, indeed, over the responsibility of senior officials to obey their consciences, as opposed to presidential policies they cannot embrace.
Still, once the Senate eventually takes up Gorsuch’s nomination, after the threat by at least one Democratic senator to filibuster (an effort to stop further action while a senator holds the floor and speaks sans interruption or yielding the floor, an extreme measure that is compatible with the Senate’s rules of procedure) finally burns out due to the exhaustion of the filibustering senator, any vote to confirm would require 60 of the 100 members of the Senate to support him. Here’s where it gets interesting – and complex.
With a 52-48 split in the Republican-led Senate, the Republicans would need to peel away eight Democratic senators to entice them to support Gorsuch’s nomination when it finally comes to a vote before the full Senate. More interestingly still, there are a number of potentially vulnerable Democrats in the Senate (up for election in the mid-term election of 2018) whose home states voted for Trump in 2016, rather than Hillary Clinton. Such members might well feel some heat from their constituents to cast their support in favour of Gorsuch. That assumes they ranked their own re-election higher than larger party principles or even opposition to Donald Trump in a potential defeat that might even blunt his lance for other measures where he might need support from them.
As University of Chicago constitutional law professor Eric Posner wrote on Sunday for The New York Times,
“Judge Neil Gorsuch, President Trump’s nominee for the Supreme Court, must publicly condemn the president’s attack on the judge who blocked his immigration order. Judge Gorsuch’s sterling credentials notwithstanding, his supporters in the legal community should withdraw their backing for his nomination if he fails to do so.
“After Judge James Robart’s ruling Friday evening, Mr. Trump wrote on Twitter, ‘The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!’ Mr. Trump may be right that the order will be stayed or overturned — the legal merits are tricky, and Judge Robart has not heard full briefing of them yet. But the attack on Judge Robart’s integrity is indefensible.”
“Mr. Trump, as in so many other cases, has broken new ground. His attack on Judge Robart comes at a fraught moment. During Mr. Trump’s campaign, his reckless statements were dismissed by his supporters as mere rhetoric. When Judge Gonzalo P. Curiel ruled against him in the Trump University case, Mr. Trump called him a ‘total disgrace’ and accused him of bias because he was ‘Mexican’ (actually, an American citizen of Mexican descent). It might have been barely possible to see this offensive statement as red meat for the base rather than a considered judgment about the integrity of the federal judiciary. Not any more.
“Now that Mr. Trump is president, his words matter. When federal judges in New York, Virginia and Massachusetts initially blocked Mr. Trump’s travel ban a week ago, reports emerged that border agents disobeyed the courts or obeyed only grudgingly. Whatever happened, Mr. Trump’s attack on Judge Robart’s integrity could encourage executive branch officials to disregard other judicial orders, and will further inflame people’s distrust of border agents, whether they do or not.
“Worse, Mr. Trump has made it clear that he regards any judge who thwarts his designs as a personal enemy. If Judge Robart’s order reaches the Court of Appeals in the Ninth Circuit, the appellate judges will need to worry that if they reverse Judge Robart, they will be seen by the public as validating Mr. Trump’s attack on the district judge, further damaging the judiciary’s reputation for impartiality. If they uphold his order, Mr. Trump may attack them as well. Whatever they do, the damage has been done.”
Given the rising tensions, Posner has suggested Gorsuch frame his positions publicly, recalling his one words in a decision he had rendered previously. Gorsuch had written, “The framers lived in an age when judges had to curry favour with the crown in order to secure their tenure and salary and their decisions not infrequently followed their interests. Indeed, the framers cited this problem as among the leading reasons for their declaration of independence. … To this day, one of the surest proofs any nation enjoys an independent judiciary must be that the government can and does lose in litigation before its ‘own’ courts like anyone else.”
Of course, the continuing fight over an executive order that was issued without consultation with the agencies that must deal with the inevitable fallout domestically and internationally, and the impending fight over the nomination of Neil Gorsuch to the Supreme Court, both play to a larger narrative in the new Trump administration and its constant hyperbole, apparent chaos, and the constant churning of the political waters – domestically as well as internationally.
The Economist argued this week,
“Washington is in the grip of a revolution. The bleak cadence of last month’s inauguration was still in the air when Donald Trump lobbed the first Molotov cocktail of policies and executive orders against the capital’s brilliant-white porticos. He has not stopped. Quitting the Trans-Pacific Partnership, demanding a renegotiation of NAFTA and a wall with Mexico, overhauling immigration, warming to Brexit-bound Britain and Russia, cooling to the European Union, defending torture, attacking the press: onward he and his people charged, leaving the wreckage of received opinion smouldering in their wake.
“To his critics, Mr Trump is reckless and chaotic. Nowhere more so than in last week’s temporary ban on entry for citizens from seven Middle Eastern countries – drafted in secret, enacted in haste and unlikely to fulfil its declared aim of sparing America from terrorism. Even his Republican allies lamented that a fine, popular policy was marred by its execution.
“In politics chaos normally leads to failure. With Mr Trump, chaos seems to be part of the plan. Promises that sounded like hyperbole in the campaign now amount to a deadly serious revolt aimed at shaking up Washington and the world….
“Americans who reject Mr Trump will, naturally, fear most for what he could do to their own country. They are right to worry, but they gain some protection from their institutions and the law. In the world at large, however, checks on Mr Trump are few. The consequences could be grave.
“Without active American support and participation, the machinery of global co-operation could well fail. The World Trade Organisation would not be worthy of the name. The UN would fall into disuse. Countless treaties and conventions would be undermined. Although each one stands alone, together they form a system that binds America to its allies and projects its power across the world. Because habits of co-operation that were decades in the making cannot easily be put back together again, the harm would be lasting. In the spiral of distrust and recrimination, countries that are dissatisfied with the world will be tempted to change it – if necessary by force….”
It is possible that if President Trump loses his fight quickly over his executive order, such a demonstration of the non-inevitability of his power and the confirmation of the judiciary as a bulwark against presidential overreach will have an effect on the nomination of the next would-be Supreme Court justice. It may also embolden his opponents domestically on various other fronts, starting with the increasingly imperilled nomination of zillionaire Betsy DeVos for Secretary of Education, especially given her rather gormless testimony at her own confirmation hearing. Down the road, it may encourage friendly foreign governments to oppose more publicly some of his more peculiar positions on international relations. And, of course, all of this may even make some of his international opponents sit up and take notice that Trump’s impact is not unstoppable.
Thus the weather forecast for Donald Trump: increasingly choppy seas ahead. Possible squalls on the horizon. DM
Photo: An Iraqi family from Woodbridge, Virginia, welcomes their grandmother at Dulles International Airport in Sterling, Virginia, USA, 05 February 2017. The grandmother, who holds a US green-card, was visiting her daughter who had given birth in Iraq but could not return to the US due to a travel ban in place after US President Trump signed an executive order. A federal judge on 03 February issued a temporary restraining order blocking enforcement of US President Trump’s executive order from 27 January that banned people from seven mainly Muslim countries from entering the United States. EPA/Astrid Riecken
Daily Maverick © All rights reserved