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]
4 Comments
Schumer clearly forgot he was not on the floor of the Senate, where he can say anything that comes into his head, drawn by the vacuum, rather than on the grounds of the Supreme Court, which makes his threat a crime under 40 USC §§6134 & 6137(a) (Thanks, Crime A Day Twitter!). Of course, he can just admit to being a bloviating windbag, and thus incapable of uttering a true threat. I’d believe that if I were on the jury.
Bob
“should not have used the words I used. They didn’t come out the way I intended to,””
It seemed to me Schumer was quite vehemently saying exactly what he meant to say. And now he wants me to believe he didn’t really meant it?
What am I to conclude? That the man does not know his own thoughts? Or that he lies at his convenience?
Either way, I cannot believe another word Schumer says.
Not a damn word.
“What am I to conclude? ”
He’s a politician. Therefore: he never means anything he says. As for what he intended, being a politician, he is incapable of intent.
I come at this a bit differently. Obviously, Trump’s “Mexican judge” was wrong. Full stop. Obama’s use of the SOTU was in bad form—rules of politesse don’t allow one to criticize another to his or her face when they are in no position to respond. Schumer’s comment was far over the line, and Roberts was right to respond.
I believe, however, that our judiciary deserves exceedingly harsh criticism, and whining about disrespect for the judiciary is generally a cover for the idea that judges get to do what they want, and we, as a society just have to accept that. That is nonsense. And then we always have the annoying “civility” police. I believe that Justices Breyer and Ginsburg have blood on their hands for Zadvydas v, Davis, as that decision has taken away the American people’s right to remove criminal aliens from its midst when their home countries won’t accept them back. And no, I don’t believe they arrived at this result from the standpoint of neutral application of the law. Is that sort of criticism harmful? Is it uncivil? Who knows, and who cares?
Let’s just look at one of the most recent controversies–Amy Berman Jackson and Roger Stone. Her comment, from the bench no less, that Stone was “covering up for Trump” was appalling. First of all, Stone’s crimes had nothing to do with “covering up for Trump.” So basically, from the bench, Judge Berman Jackson was making a political statement to smear a non-party to the litigation. Chief Justice Roberts had no problem taking Trump to task for saying what we all know—that there are “Obama judges,” the party of the President appointing them matters. But he has nothing to say about Berman Jackson? Trump would be right to point this out.