“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.

10 Comments

  • I think you are reading waaaaay too much into Trump’s “so-called” remark. It was only an offhand remark to show that he felt the judge wasn’t doing his job properly. It was a twitter comment, for heavens sake! Trump shoots from the hip, for better or worse, and that’s just his style. The establishment will just have to stop the pearl clutching and learn to sift out what is really important. There certainly wouldn’t be any reason for DoJ attorneys to defend the “so-called” statement in court.

    • Just as some in earlier generations found it surprising that Presidents might make news by placing telephone calls, broadcasting live from radio, or appearing on television, so it still apparently counts as surprising in some quarters that this president”s tweets are news.

      As for whether there “certainly wouldn’t be any reason for DoJ attorneys to defend” the statement in court, Josh Blackman, in the post linked above (scroll to “Update”), recounts the tale of what happened in 2012 after President Obama delivered widely publicized remarks scolding the courts about the pending ObamaCare litigation, to the outrage of Republicans. Fifth Circuit Court of Appeals Judge Jerry Smith, presiding over one of the ObamaCare cases, promptly ordered the U.S. Department of Justice to submit a three-page memo squaring the President’s remarks with what he had previously taken to be the administration’s respect for independent judicial review. So the complication Mr. Rohan dismisses as speculative actually happened within the past five years.

      http://joshblackman.com/blog/2017/02/04/when-presidents-criticize-the-courts-before-and-after-november-8/

      • Judge Smith likely crossed a line. Presidents have the right to “work the refs,” and judges don’t have the right to jerk around government lawyers when POTUS makes a political statement.

    • I’m really not sure why this comment must be defended, even if you support the President on this matter. One can easily criticize a judge’s legal reasoning (as several observers have in this case) without questioning their very legitimacy as a judge. Twitter may lend itself to a certain communication style, but any remark by the President carries a significant amount of weight (just ask the stock market when he tweets about specific companies) and should be taken seriously. As for “what is really important,” I would consider attacks on the legitimacy of the judiciary to be pretty important: describing judges as “so-called” gives rise to reasonable concern that one might also refuse to abide by their rulings.

      • Bernie Sanders recently called President Trump a “fraud”. Other political figures say they don’t want to “normalize” him. Isn’t that questioning Trump’s legitimacy and gives rise to reasonable concern that one might also refuse to abide by his directives?

        Once again, we can agonize over tweets (which are limited to 140 characters so they cant be precise), or we can simply ask Trump if he’s going to abide by the judge’s ruling. So far, it looks like he is.

  • Hmmmm.

    Aren’t we mistaking cause for effect? If federal judges go off the reservation (and anyone remotely familiar with capital cases or AEDPA knows that they do), then at some point, the political branches are going to push back. Judge Kermit Bye (in an opinion lauded by Justice Ginsburg) called Missouri’s LI procedures a high school science experiment. When I see the legal guild taking that sort of nonsense seriously, and pillorying the judges involved, then I’ll take seriously the pearl-clutching over Trump’s justified on the merits criticism of this activist judge.

    And, by the by, if the judge is ticked off about Trump’s criticism, my advice would be to suck it up. Elected officials have the right to speak their minds about the judiciary. It’s not great when the criticism is unfair (e.g., Obama at the SOTU), but here Trump’s remarks are only intemperate, not inaccurate. If the judge is indecorous enough to bring up Trump’s statements in court, then he cannot expect the attorneys to criticize Trump.

  • I agree this is worse.

    Obama as the head of one branch of government was berating another branch of government. While perhaps bad form, he did not accuse the other branch of being illegitimate. Indeed, many times the judicial branch has accused the other branches of making bad decisions, i.e., misinterpreting the constitution or statutes. They do so without calling the other branch “so-called.”.

    What Trump said/wrote undermines the government. A president should not do that. But then again, personal attacks are par for the course when considering this president. I really feel like I am watching the insecure captain of the football team trying to rule the high school lunch room.

    • You might feel differently if you were subject to a coercive court order issued by a judge who was supposed to, but did not, apply legal rules properly. Judges, at the end of the day, are public officials. We seem to have, as a society, this weird lese-majeste idea when it comes to criticizing judges. To me, the idea of getting into a splitting hairs debate over whether Obama’s comment is worse or not than Trump’s misses the point. The genie is out of the bottle–federal judges are no long strictly doing what, to quote Scalia, is lawyers work. With that is going to come the inevitable pushback and on terms the judges aren’t going to like.

      This judge, let’s get it right, has taken away society’s right, through elections, to determine who gets to come to the US and who gets vested rights to stay. Questioning his legitimacy? Awwww, my heart bleeds.

      As I said, upthread, when the lawyer’s guild starts harshly criticizing judges for out of control rulings, then maybe we can put the genie back in the bottle.

  • I think the “so-called” epithet was meant to refer to, in Trump’s opinion, the judge not judging like a judge. Sure, the guy might have the title of a judge, but he’s not really one if he’s deliberately not judging his cases like one.

    At least, that’s how I took it. Angry people tend to limit themselves to a subset of their words, which makes it tricky to be sure. “So-called judgment” would have conveyed such a meaning more accurately.

    • Ras, that’s how I took it. “So-called” not as to his title, but as to his judging abilities. I think Exhibit ZZ in taking Trump literally but not seriously.

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