Will the ju­di­ciary bow to Trump?

Baltimore Sun - - COMMENTARY - By Chris­tine Adams

For the last three years, Amer­i­cans have re­lied on the ju­di­ciary to serve as a guardrail against a pres­i­dent who flouts norms and laws in an ef­fort to en­act a rad­i­cally right-wing and self-serv­ing agenda. In mat­ters re­lat­ing to im­mi­gra­tion, refugees, trade and for­eign pol­icy, judges ap­pointed by both Demo­cratic and Repub­li­can pres­i­dents have of­ten thwarted the pres­i­dent’s de­sire to act uni­lat­er­ally. Now we are count­ing on them to help ex­pose pres­i­den­tial abuses of power.

As the House of Rep­re­sen­ta­tives con­ducts an im­peach­ment in­quiry into the pres­i­dent’s ac­tions, it will rely on the ju­di­ciary to en­force sub­poe­nas re­quest­ing in­for­ma­tion and tes­ti­mony. An­a­lysts have sug­gested that courts will be more likely to fast-track these re­quests now that im­peach­ment is on the ta­ble.

I wish I were more con­fi­dent that would be the case.

Al­though state and fed­eral courts have blunted the Trump ad­min­is­tra­tion’s more ag­gres­sive ac­tions, in many in­stances the brakes on pres­i­den­tial am­bi­tions have been only tem­po­rary. Among the cases that have made it to the Supreme Court, Pres­i­dent Trump’s 5-4 con­ser­va­tive ma­jor­ity has gen­er­ally backed him up. For ex­am­ple, the third at­tempt to im­pose a ban on Mus­lims en­ter­ing the coun­try pro­vided a fig leaf suf­fi­cient for the con­ser­va­tive jus­tices to ap­prove it, al­though ev­i­dence in­di­cates that the promised waiver for cer­tain ap­pli­cants is merely “win­dow dress­ing” for the ban, and rarely granted, as lib­eral Jus­tices Stephen Breyer and So­nia So­tomayor ear­lier sug­gested would be the case.

The con­ser­va­tive jus­tices of the Supreme Court blandly state that they are ap­ply­ing the law, in­dif­fer­ent to po­lit­i­cal be­liefs or con­se­quences, on their way to sup­port­ing the pres­i­dent’s ex­tra­or­di­nary ac­tions. One ex­cep­tion to the Supreme Court’s will­ing­ness to up­hold ex­ec­u­tive power was in the case of the Trump ad­min­is­tra­tion’s at­tempt to add a cit­i­zen­ship ques­tion to the U.S. cen­sus.

And that only failed be­cause the dis­cov­ery of doc­u­ments prov­ing that it was a Repub­li­can scheme to en­sure an un­der­count that would be “ad­van­ta­geous to Repub­li­cans and non-His­panic whites” was too egre­gious to ig­nore. Now, as Pres­i­dent Trump faces im­peach­ment, will the jus­tices de­ter­mine that ex­ec­u­tive priv­i­lege al­lows the pres­i­dent and his ad­vis­ers to openly defy con­gres­sional over­sight?

Se­nate Ma­jor­ity Leader Mitch McCon­nell, a Ken­tucky Repub­li­can, boasts the most about his re­fash­ion­ing of the fed­eral ju­di­ciary, in­clud­ing the Supreme Court. Mr. Trump has stocked the fed­eral courts with over 150 judges, many of them young, in­clud­ing sev­eral rated “un­qual­i­fied” by the Amer­i­can Bar As­so­ci­a­tion. More than two dozen Trump ju­di­cial nom­i­nees have re­fused in hear­ings be­fore the Se­nate to ac­cept as set­tled law Brown vs. Board of Ed­u­ca­tion, the most fun­da­men­tal of Supreme Court rul­ings, and many of these new judges show a chill­ing will­ing­ness to up­hold ex­ec­u­tive power whatever the le­gal prece­dent.

At­tor­ney Gen­eral Wil­liam Barr’s be­lief in the uni­tary ex­ec­u­tive and the ap­par­ent will­ing­ness of the Supreme Court to sup­port pres­i­den­tial ac­tions un­der the most ques­tion­able cir­cum­stances echo the maxim cited by pro­po­nents of divine right monar­chy in the early mod­ern era: The king’s will has the force of law. If he knows the courts will al­ways be on his side, the pres­i­dent is ef­fec­tively above the law.

In the past few weeks, our polity has en­tered a new and rapidly-chang­ing phase.

It may be that Congress’ will­ing­ness, at long last, to start an im­peach­ment in­quiry will mean the re-es­tab­lish­ment of the guardrails to our democ­racy; at the mo­ment, pub­lic opin­ion seems to sup­port this in­ves­ti­ga­tion. Per­haps the ju­di­ciary will fol­low the prece­dent set dur­ing the Water­gate hear­ings that the pres­i­dent can­not claim ex­ec­u­tive priv­i­lege to shield law­less be­hav­ior. I sin­cerely hope so. Along with Congress, the courts serve as a coun­ter­bal­ance to the im­mense power the mod­ern pres­i­dent has. His­to­ri­ans — and the Amer­i­can pub­lic — will be watching to see how our ju­di­ciary re­sponds at this piv­otal mo­ment.

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