Guest on NPR Weekend Edition with Nina Totenberg Talking about Trump’s Criticisms of Judges

February 11th, 2017

On Thursday, I spoke with Nina Totenberg about President Trump’s criticisms of the judiciary, and how his remarks follow precedents set by President Obama. (I discuss that theme here). Half of those sentiments made it into the segment, for which I am grateful. You can listen here:

And here is a transcript of my remarks:

Presidents, for the most part, avoid public feuds with courts for a practical political reason.

“Trump’s statements are extremely self-defeating,” observes Josh Blackman, a constitutional law professor at South Texas College of Law Houston.

“The more he says the courts are biased or will rule against him because they’re stupid,” comments Blackman, “it subconsciously increases the chances that they will rule against him.”

There is a more serious reason Trump should avoid criticizing judges too, Blackman says. Under the U.S. system of three branches of government, the judicial branch — the courts — ultimately are the checks on the legislative and executive branches when they exceed or even abuse the limits of their power.

One portion that made it into the transcript, but not the audio segment, expressed my concern of what would happen if Trump’s judges display disloyalty by ruling against him:

Less than a month into Trump’s presidency, many leading lawyers and scholars are worried. Professor Blackman fears that if Trump’s nominee for the Supreme Court Neil Gorsuch is confirmed and ends up ruling against the president, the next Trump nominee would be “a crony.”

I always expected Trump to follow through on his promise to receive counsel from the Federalist Society to replace Justice Scalia. My concern, however, was always about subsequent nominations. I shared this sentiment with Josh Gerstein of Politico two weeks ago:

Some conservatives expect to be delighted by Trump’s pick this week but fear his fondness for the Federalist Society and one of the group’s leaders, Leonard Leo, may fade over time if the newly appointed judge crosses the Trump administration.

“I’m worried if he finds judges ruling ways he doesn’t like, he’ll simply stop listening to his advisers and start appointing his cronies,” Blackman said. “My only hope is that he will appoint as many judges as possible before he decides to stop calling Leonard Leo.”

I hope Trump stays strong on judges, and not just for SCOTUS. There are over 100 district and circuit vacancies. George W. Bush made his first batch of nominations on May 9, 2001. That slate included was all-star cast, including Michael McConnell, Jeff Sutton, John Roberts, and Miguel Estrada. Get going!