San Francisco Chronicle - (Sunday)
Trump wanted to banish court in S.F., book says
The Ninth U.S. Circuit Court of Appeals, the nation’s largest appellate court and one of its most liberal, is a perennial target of Republicans, who have called for breaking it up while counting on the Supreme Court to overturn its rulings. A new book by two veteran journalists says Donald Trump, while president, asked an aide to try to eliminate the San Francisco-based court.
After the appeals court ruled against one of Trump’s orders in 2018 to speed up the deportation of immigrants seeking asylum in the United States, the president told Homeland Security Secretary Kirstjen Nielsen, “Let’s just cancel” the court, according to “The Divider,” by Peter Baker of the New York Times and Susan Glasser of the New Yorker. If legislation was needed, he said, she should draft a bill to “get rid of the f—ing judges” and send it to Congress.
Nielsen, who had no authority to abolish a court, “did not bother arguing” with Trump and just ignored his demand and hoped he would forget about it, the authors wrote. She left office in April 2019 — a departure described in varying accounts as a resignation or a firing — after the president complained that his appointees were not doing enough to close the U.S.-Mexico border.
Trump wound up appointing 10 judges, all conservative, to the Ninth Circuit, which still has 16 Democratic appointees among its 29 judges.
Trump has regularly attacked and belittled judges who ruled against him. As a candidate in 2016, after U.S. District Judge Gonzalo Curiel of San Diego refused to dismiss a fraud suit by students of the now-defunct Trump University, Trump referred to the Indiana-born judge as “Mexican” and called him a “hater” who was biased against Trump because of his plan to build a wall at the Mexican border. Trump later settled the students’ lawsuit for $25 million.
After U.S. District Judge James Robart of Seattle blocked Trump’s first version of a ban on travel to the U.S. from a group of Muslim-majority countries in 2017, the president described the George W. Bush appointee as a “so-called judge” and attacked the Ninth Circuit, which later upheld Robart’s order. Trump’s own Supreme Court nominee, Neil Gorsuch, who was then awaiting Senate confirmation, called the president’s comments “demoralizing” and “disheartening.”
Trump has also clashed with Chief Justice John Roberts, another Bush appointee, who ruled both for and against his administration in significant cases: He wrote the 2018 ruling upholding Trump’s final version of his travel ban, and another 2018 decision rejecting Democratic challenges to partisan gerrymandering. But Roberts also wrote the 2019 ruling rejecting Trump’s attempt to add a citizenship question to the 2020 census, and a 2020 decision blocking the president’s attempt to abolish the DACA program for young undocumented immigrants. And Trump, as a candidate, referred to Roberts as an “absolute disaster” for his 2012 ruling that upheld most of President Barack Obama’s health care law.
When U.S. District Judge Jon Tigar of Oakland blocked one of Trump’s immigration orders in 2018, the president responded, “This wasn’t law, this was an Obama judge,” and drew a rare public rebuke from Roberts.
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” but simply “an extraordinary group of dedicated judges doing their level
best to do equal right to those appearing before them,” the chief justice told the Associated Press.
His statement drew eye-rolling from observers of judicial partisanship and a quick riposte from Trump on Twitter: “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country.”
Trump hasn’t stopped his attacks since unwillingly leaving office last year. A recent target was U.S. District Judge David Carter of Los Angeles, who ordered Trump attorney John Eastman to provide documents to the House committee investigating the Jan. 6, 2021, Capitol riot. Carter said the documents included emails that “demonstrate an effort by President Trump and his attorneys to press false claims in federal court” to delay congressional certification of the 2020 election, evidence of “a conspiracy to defraud the United States.”
“Who’s this Clinton appointed ‘Judge,’ David Carter, who keeps saying, and sending to all, very nasty, wrong, and ill informed
statements about me,” Trump responded Oct. 20 on his media network, Truth Social. “Please explain to this partisan hack that the Presidential Election of 2020 was Rigged and Stolen.”
Trump’s newly reported demand to abolish an entire federal appeals court may have been just a figure of speech. But some legal commentators say it sheds light on the future intentions of the former president, who is expected to announce his 2024 candidacy on Tuesday.
“There have been pushes to divide the circuit and appoint more conservative judges. But I don’t recall any president calling for its elimination,” said Kevin Johnson, the law school dean at UC Davis. “To me, President Trump’s plan, like many of his initiatives (such as family separation) were without precedent and shows the extreme measures that he would propose.”
“Of course, (Secretary) Nielsen was the wrong person to ask but I don’t see anything anywhere saying that Trump was told no,” said Garrett Epps, a University of Oregon law professor who has written several books on legal issues. “We can
expect the same attitude toward courts if he returns to office.”
On the other hand, Republicans are not the only politicians who have attacked individual judges. As the Supreme Court prepared to rule on an abortion case in March 2020, Senate Majority Leader Chuck Schumer, D-N.Y., told an abortion rights rally, “I want to tell you Gorsuch, I want to tell you (Brett) Kavanaugh — you have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.” And many Democrats have denounced the court, with its three Trump appointees, as a partisan and biased institution since its June 24 decision repealing the constitutional right to abortion that it had declared in 1972.
Michael McConnell, a former federal appeals court judge and now director of the Constitutional Law Center at Stanford, said “Trump and the progressive critics trying to legitimize the Court deserve each other.”