WASHINGTON — President Donald Trump lashed out Wednesday at federal judges considering a challenge to his executive order banning travel from seven predominantly Muslim countries, as his Supreme Court nominee called Trump’s attacks on the independent judiciary “demoralizing” and “disheartening.”
Trump escalated his public feud with the courts over his immigration order, saying that he had found a federal appeals court hearing on his executive order Tuesday night “disgraceful,” and that the judges had failed to grasp concepts even “a bad high school student would understand.”
The comments were a remarkable show of disdain by a sitting president for an independent judiciary, and they came at an awkward time for Trump, just as his newly selected nominee for the Supreme Court, Judge Neil M. Gorsuch of the federal appeals court in Denver, was meeting with senators on Capitol Hill in the hopes of gaining support for his confirmation.
Gorsuch told Sen. Richard Blumenthal, D-Conn., that he objected to Trump’s harsh criticism of the courts, including his attack over the weekend on a Seattle district court judge who temporarily blocked his immigration order.
In a Twitter post Saturday, the president called Judge James L. Robart, a “so-called judge” whose ruling was “ridiculous” and would be overturned.
Trump’s invective toward judges is a jarring break from a tradition observed by presidents of both parties. Presidents have usually tried to refrain from even appearing to intervene in court cases that concern them or their policies, or from impugning the jurists charged with deciding them, according to judges and legal experts from across the political spectrum.
“I don’t ever want to call a court biased, so I won’t call it biased,” Trump told a gathering of sheriffs and police chiefs Wednesday in Washington. “But courts seem to be so political, and it would be so great for our justice system if they would be able to read a statement and do what’s right.”
Trump, who opened his remarks reciting the passage of the U.S. code that gives the president the power to restrict immigration whenever he deems the influx of foreigners detrimental to the country, said he had watched “in amazement” Tuesday night as a three-judge federal appeals panel heard arguments on his executive order and the limits of presidential power in cases of national security.
“I listened to a bunch of stuff last night on television that was disgraceful,” Trump said. “I think it’s sad. I think it’s a sad day. I think our security is at risk today.”
“This is highly unusual,” said Michael W. McConnell, a former federal judge who directs the Constitutional Law Center at Stanford University. “Mr. Trump is shredding long-standing norms of etiquette and interbranch comity.”
“It’s partly good manners, but more importantly, the separation of powers works better when the branches aren’t in a spitting match,” added McConnell, who was nominated to his judicial post by President George W. Bush.
Trump appears bent on engaging in just such a confrontation with independent judges who hold the fate of his travel ban in their hands.
His comments came the morning after a lively, roughly hourlong hearing — the audio of which was carried live on national television — during which three judges on the 9th U.S. Circuit Court of Appeals expressed skepticism about the arguments of a Justice Department lawyer defending Trump’s order.
A federal judge in Seattle blocked the travel ban Friday, and the appeals court is considering whether to uphold that action. The panel said Tuesday that it would rule as soon as possible. Trump on Wednesday appeared incensed about the challenge, saying, “It’s really incredible to me that we have a court case that is going on so long.”
At one point during Tuesday’s arguments, August E. Flentje, the Justice Department lawyer, appeared to acknowledge he was making little headway with the judges, commenting, “I’m not sure I’m convincing the court.”
Trump took aim at one of the judges without specifying which one, saying, “I will not comment on the statements made by, certainly one judge.” The panel was made up of Judge William C. Canby Jr., appointed by Jimmy Carter; Judge Richard R. Clifton, named by George W. Bush; and Michelle T. Friedland, nominated by Barack Obama.
“If these judges wanted to, in my opinion, help the court in terms of respect for the court, they’d do what they should be doing,” Trump said. “It’s so sad.”
By contrast, he lavished praise on a federal judge in Boston who last week ruled that the travel ban could stay in place. “Right on — they were perfect,” Trump said of that judge’s comments.
Peter Wallison, who served as White House counsel to President Ronald Reagan, said: “It’s not illegal, it’s not a violation of the law to do these things, but it’s bad policy because it raises questions about the independence of the courts, and it raises questions about the judicial system as a whole when the president says this.” Trump defended the process that yielded the executive order, saying he had initially wanted to wait a week or even a month before issuing the travel ban. But the president said he was told by law enforcement officials that doing so would prompt a flood of people, including some with “very evil intentions,” to rush into the United States before the restrictions took effect.
“We do things well; we did things right,” Trump said. “I suggested a month, then I said, ‘Well, what about a week?’ They said no, you can’t do that because then people are going to pour in before the toughness goes on.”
That account appears to be at odds with the one given by several senior officials, who have said they were not fully briefed on the details of Trump’s order until the day the president signed it at the Pentagon.
The president told the law enforcement officers that he was acting solely out of a concern about terrorism, a threat he said had deepened since he took office and gained access to information about the risks facing Americans.
“Believe me; I’ve learned a lot in the last two weeks, and terrorism is a far greater threat than the people of our country understand,” Trump said. “But we’re going to take care of it. We’re going to win.”