Attacks on judiciary are dangerous. This judge speaks up.
Federal judges mostly speak through their opinions. When they give speeches or write law review articles, they tend to take measured tones. On the rare occasions they tread into issues touching on current politics, they usually do so obliquely.
So it was all the more striking that Paul Friedman, a highly respected federal district court judge, used the occasion of an annual lecture before a group of the capital’s most distinguished judges and lawyers not merely to defend the independence of the federal judiciary but to take on President Trump directly.
“We are witnessing a chief executive who criticizes virtually every judicial decision that doesn’t go his way and denigrates judges who rule against him, sometimes in very personal terms,” Friedman said. “He seems to view the courts and the justice system as obstacles to be attacked and undermined, not as a coequal branch to be respected even when he disagrees with its decisions.”
Trump, Friedman noted, “is not the first president to be frustrated with judicial outcomes and to respond by attacking judges personally.” He cited Thomas Jefferson, who proposed electing judges; and Franklin D. Roosevelt, whose court-packing scheme was “a bad idea then and a bad idea now”; and Barack Obama, who “surely chose an inappropriate forum” in criticizing the Citizens United ruling before a “captive audience” of Supreme Court justices at the 2010 State of the Union.
“And yet, what we are witnessing today and over the last few years is markedly different,” Friedman said, ticking through Trump’s greatest hits on the judiciary — the “Mexican” judge, the “so-called judge,” the “complete & total disaster” 9th Circuit. “This is not normal,” Friedman concluded. “And I mean that both in the colloquial sense and in the sense that this kind of personal attack on courts and individual judges violates all recognized democratic norms.”
Bravo. The audience thought so, too — Friedman received a lengthy standing ovation.
Underscoring Friedman’s point, the new book by an anonymous Trump administration official depicts the president, furious over rulings against him, instructing White House lawyers to draft a bill to cut the number of federal judges. “Can we just get rid of the judges? Let’s get rid of the (expletive) judges,” Trump is quoted as saying. “There shouldn’t be any at all, really.”
To grasp the significance of Friedman’s remarks, it helps to understand something about him. Friedman, 75, was named to the bench by Bill Clinton, but he is no liberal hothead. He is a former federal prosecutor and corporate lawyer. I met him 30-something years ago, when he was president of the D.C. bar. He was judicious long before he was a judge.
Friedman is not the first federal judge to chide Trump for his intemperate attacks, although his criticism is uncommonly direct. Chief Justice John G. Roberts Jr. last year responded to a Trump fusillade by noting, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.”
These are important efforts to counter Trump’s dangerous assaults, but they also contain an element of naivete. Certainly, as Friedman pointed out, some Republican-appointed judges have joined Democratic colleagues in ruling against the Trump administration’s legal excesses.
Yet there are significant, increasing and hard-to-ignore philosophical differences between judges chosen by Republican and Democratic presidents. Growing partisanship and accompanying procedural changes, including eliminating the filibuster for judicial nominees, have resulted in a more hard-edge breed of ideologically committed judges on the bench. Trump might like to get rid of the federal judiciary, but he has moved to transform it instead, quickly stocking the courts with young conservatives.
Trump boasted about this achievement at a White House event the same day as Friedman’s speech, noting that he had now named 1 in 4 federal appeals court judges, with an average age under 50. The American Bar Association has rated nine of Trump’s nominees “not qualified,” more than for any previous president; five of them have been confirmed.
Friedman, understandably, took an optimistic view of his colleagues, old and new. Most judges, he said, “fully understand that they are not beholden to — and cannot be counted on — to please ‘the home team,’ as it were.” Perhaps, but as the judiciary becomes more ideological, and more ideologically polarized, there is a disturbing amount of lining up with the home team. “If it’s my judges,” Trump promised evangelical Christian leaders during the campaign, “you know how they’re going to decide.”
The next few years will offer a guide to the reliability of that promise. In the meantime, it is important both to defend the independence of the judiciary against Trump’s attacks on it and to be clear-eyed about what he is doing to it.