Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘heap no abuse upon judges’

Schumer backtracks on SCOTUS diatribe, but not far enough

On Wednesday, at a rally on the Supreme Court steps, Senate Minority Leader Chuck Schumer (D-N.Y.) cut loose with a truly amazing diatribe against Justices Neil Gorsuch and Brett Kavanaugh, declaring that the two would “pay the price” and “won’t know what hit you if you go forward with these awful decisions.” Schumer’s menacing if vague comments drew prompt disapproval from a broad range of legal figures, such as the heads of the American Bar Association and New York City Bar Association as well as Democratic SCOTUS shortlister Neal Katyal and Harvard’s Larry Tribe. Chief Justice John Roberts weighed in with a rare public rebuke: “threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous.”

Schumer proceeded to dig in and even blast Roberts personally for the criticism. By Thursday, he was ready to concede grudgingly that he “should not have used the words I used. They didn’t come out the way I intended to,” while still staying on the offensive in every other respect and accusing his adversaries of “manufacturing” the uproar.

I’ve got a new post at Ricochet reviewing the controversy, including its much-echoed “what about…?” dimension:

Defenders of Schumer assailed the chief justice for not having weighed on some other inappropriate Trump sallies, including his ill-grounded speculation recently (never filed as an actual motion) that Justices Ruth Ginsburg and Sonia Sotomayor should recuse themselves from Trump matters, and his aspersions on the judge in the Roger Stone case. Those are part of a frequent and blatant Trump habit of trash-talking judges, both as a candidate (calling the judge in the Trump University case “Mexican” and “a hater”) and as President (“so-called judge” among numerous others). Some — I’m one — would say that this is among Trump’s very worst and most damaging patterns of behavior.

But as cooler heads noted, including Ruth Marcus of the Washington Post, the chief justice is not a playground proctor who can step in to write up every demerit; he needs to save his efforts for the instances that are most dangerous, as he in fact has done.

The wider picture, it might be noted, is one in which nasty swipes at judges have been routinized for years, from a range of public figures and also from former President Barack Obama, both in his 2010 State of the Union speech and also repeatedly during the court review of ObamaCare. Still, none of these have gone as far to suggest personal threat as did Schumer — not even the extraordinarily inappropriate amicus brief filed by Sens. Sheldon Whitehouse and four other Senate Democrats last August, assailing the Court’s legitimacy and warning that “restructuring” at the hands of political branches lies ahead if it does not mend its ways.

I conclude that Schumer needs to go back and apologize, seriously this time. And it’s time for all who’ve fallen short of defending judicial independence — Republicans and Democrats alike — to do so. [cross-posted from Cato at Liberty]

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“So-called”

“The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” President Donald Trump tweeted on Saturday morning. It was one of a series of tweets assailing the temporary restraining order issued by a federal judge in Washington state momentarily barring enforcement of the President’s executive order on visas and border crossing. Wait till he gets to the so-called Ninth Circuit!

It is still unusual to encounter the epithet so-called in high official pronouncements, in the United States at least (Pravda used to be fond of tak nazyvayemyye back in the day). But we have come to expect Trump to break new ground in judicial disrespect following his attacks last year as a candidate on federal judge Gonzalo Curiel of the Southern District of California, who was presiding over the Trump University case. I wrote then:

…In his rambling remarks, Trump also referred to Judge Curiel as “Mexican”: the jurist, previously the chief federal prosecutor for drug cases in southern California, was born in Indiana. Stoking by repetition, as his crowd of thousands booed, Trump called the federal judge “a hater of Donald Trump, a hater. He’s a hater,” and said he should be placed under investigation by the court system. I wonder whether anyone will be shocked if the judge requests personal protection for himself and his family as the trial proceeds.

Obama’s 2010 State of the Union remarks railing at the Justices of the Supreme Court in their presence regarding Citizens United were bad. This is far worse: the case is still in progress, Trump is a party, and the attack is on a single judge who will now find his task of ensuring a fair trial complicated. Trump, who speaks regularly around the country, chose to unleash the diatribe in the locality where the judge and others who will participate in the case, such as jurors, work and live.

As I noted at the time, the norm of not personally attacking judges has been eroding for years, not only at the hands of President Barack Obama (who publicly scolded judges not only in his 2010 State of the Union speech but also repeatedly during the court review of ObamaCare, as Josh Blackman documents) but from influential opinion leaders as well. One might cite in particular the extraordinarily vicious interest-group-led campaigns against judicial nominees, currently being cranked up against Judge Neil Gorsuch of the Tenth Circuit but familiar from a dozen earlier nominee battles as well.

In the mean time, like his remarks on Judge Curiel, Trump’s comments on Judge Robart could complicate the efforts of his own lawyers in court: “Either they have to defend the statements that Judge Robart is a ‘so-called judge,’ which you can’t do, or they have to distance themselves from the president, who is their boss,” as University of Pittsburgh law professor Arthur Hellman put it.

And the problems get more serious from there. Writes William Baude: “to call him a ‘so-called’ judge is to hint that he is not really a judge, that he lacks judicial power. It is just a hint, but it flirts with a deadly serious issue.”

That issue arises from the difference between criticizing the quality of a judicial decision and criticizing the authority of the judge to issue it:

If the court has authority, then the parties are legally required to follow its judgment: even if it is wrong; even if it is very wrong; even if the President does not like it. But if the court does not have authority, then perhaps it can be defied. So the charge of a lack of authority is a much more serious one. It is the possible set-up to a decision to defy the courts — a decision that is unconstitutional if the court does indeed have authority to decide the case.

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Trump vs. Judge Curiel: the non-case for recusal, cont’d

Sunday’s post quoted Eugene Volokh to the effect that on current evidence there is no case, not even close, for Judge Gonzalo Curiel to recuse himself in the Trump University litigation. Now Ken White at Popehat has a short explainer of the issues, noting, inter alia, that Trump can’t “earn” recusal by stepping up his attacks on Judge Curiel. Meanwhile, Alison Frankel at Reuters gives two reasons Trump’s lawyers won’t move for recusal. First, they need to worry about their reputation; second, there’s a real possibility they’d face sanctions if they did file such a motion, given precedents such as the Second Circuit’s 1998 opinion in MacDraw Inc v. CIT Group upholding sanctions issued by then-U.S. District Judge Denny Chin against lawyers who had moved for his recusal based on his Asian ancestry.

Meanwhile, a Legal NewsLine reports that Judge Curiel recently turned down a class action settlement over jeans labeling as providing too little relief to consumers as compared with lawyers and cy pres bystanders. Tweets Adam Schulman of the Center for Class Action Fairness: “Trump’s least favorite judge seems good on class actions to me.”

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“Heap no abuse upon judges”

Ira Stoll recalls a verse from Exodus — translated in the New Berkeley Version of the Christian Bible as “Heap no abuse upon judges” — and notes that the temptation to excoriate judges over unwelcome rulings knows no place or era. Ken White at Popehat pens an explainer, “Is there anything unusual about Judge Curiel’s orders in the Trump University case?” Former U.S. Attorney General Alberto Gonzales kinda-sorta defends the propriety of litigants’ blasting judges, though in a left-handed way (“if I were a litigant who was concerned about the judge’s impartiality, I certainly would not deal with it in a public manner as Trump has, because it demeans the integrity of the judicial office and thus potentially undermines the independence of the judiciary, especially coming from a man who could be president by this time next year.”), drawing a response from Cassandra Robertson via Jonathan Adler. Eugene Volokh examines the no-not-even-close-on-current-evidence case for Curiel’s recusal. Earlier on the controversy here.

Meanwhile, journalists in Detroit have been recalling the story of the flamboyant, litigious, floppy-haired millionaire populist known for his willingness to insult judges and everyone else, who shoved aside the conventional pols to capture a major party nomination. Of course I’m referring to the 1998 run for governor of Michigan of attorney Geoffrey Fieger, a longtime Overlawyered favorite [Deadline Detroit, Zachary Gorchow/Gongwer]

And also relating to this year’s presidential race, I discussed the Libertarians’ ticket of Gary Johnson and Bill Weld and its attractions in an interview with Mona Charen for her Ricochet podcast “Need to Know” with Jay Nordlinger. More here.

P.S.: Where might a candidate have learned to rant against federal judges who don’t rule his way as “corrupt”? Maybe from New York Times columnist Paul Krugman.

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Donald Trump inveighs against federal judge hearing Trump U. case

Last night, before a convention center filled with his followers in San Diego, presidential candidate Donald Trump chose to launch a lengthy diatribe against the local federal judge hearing the case against his Trump University. Trump said Judge Gonzalo Curiel, of the Southern District of California, should recuse himself, but cited no reasons for why other than that he had been appointed by Obama and had repeatedly ruled against Trump’s lawyers.

In his rambling remarks, Trump also referred to Judge Curiel as “Mexican”: the jurist, previously the chief federal prosecutor for drug cases in southern California, was born in Indiana. Stoking by repetition, as his crowd of thousands booed, Trump called the federal judge “a hater of Donald Trump, a hater. He’s a hater,” and said he should be placed under investigation by the court system. I wonder whether anyone will be shocked if the judge requests personal protection for himself and his family as the trial proceeds.

Obama’s 2010 State of the Union remarks railing at the Justices of the Supreme Court in their presence regarding Citizens United were bad. This is far worse: the case is still in progress, Trump is a party, and the attack is on a single judge who will now find his task of ensuring a fair trial complicated. Trump, who speaks regularly around the country, chose to unleash the diatribe in the locality where the judge and others who will participate in the case, such as jurors, work and live. [More: David Post]

Law professor Josh Blackman, active in the Federalist Society, writes as follows:

His jaw-dropping comments reflect an utter ignorance about what judges do, and amounts to a dangerous attacks on the fairness of our court system. Whatever negligible good will he built up by nominating a list of solid potential nominees to the Supreme Court was squandered with this scurrilous attack. Those who defended his selection process should immediately rebuke him for these baseless insults….

I am speechless. Absolutely, and totally speechless. I was highly critical of President Obama’s attacks on the Court. I cringe to think what will happen when the Supreme Court rules against [Trump].

This might be a good time to catch up, if you haven’t, on the legal saga of Trump University, which I’ve been following for more than a year (when I first looked into it as part of my research into the work of New York Attorney General Eric Schneiderman). Some coverage: Jillian Kay Melchior/NRO last July, Emma Brown/Washington Post last September, Ian Tuttle/NRO in February, Roger Parloff/Fortune, Joe Mullin and Jonathan Kaminsky/ArsTechnica. In the San Diego proceedings, one law firm ranged against Trump is Robbins Geller, descendant of convicted class-actioneer Bill Lerach’s Lerach Coughlin, and the subject of some less than flattering coverage in these columns over the years.

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