President Donald Trump’s latest legal defeat has provoked him into another round of judge-baiting.
It’s a case potentially headed for a Supreme Court whose newest member had to distance himself from Trump’s prior judiciary bashing.
In public comments and an early morning tweet-storm Wednesday and an angry late-night White House statement Tuesday, Trump blasted the “egregious overreach” and “ridiculous” ruling by an “unelected” federal judge based “in San Francisco,” following a decision that blocked the administration’s plans to financially punish so-called sanctuary cities.
“We’ll see them at the Supreme Court,” Trump said midmorning Wednesday at an unrelated Interior Department event.
If Trump is right about the ultimate destination of the sanctuary cities case, he’ll face a court reinforced by his own nominee, conservative Justice Neil Gorsuch. It could prove touchy for the court’s rookie, whose views may be aligned with the White House but who has been pressed to separate himself from the president’s heated comments about other federal judges.
“When anyone criticizes the honesty or integrity of the motives of a federal judge, I find that disheartening,” Gorsuch told the Senate Judiciary Committee last month. “I find that demoralizing, because I know the truth.”
While adding in the public hearing that “people can speak their mind” about judicial decisions, Gorsuch had likewise used the terms “disheartening” and “demoralizing” when asked about Trump’s rhetoric in a private meeting with Sen. Richard Blumenthal, D-Conn., according to the senator’s subsequent account.
Gorsuch was responding to Trump’s characterization of a “so-called judge” in Seattle who had ruled against the president’s initial executive order temporarily banning entry into the United States by residents of seven majority-Muslim nations. Earlier, prior to his election, Trump had attacked a judge “of Mexican heritage” who was overseeing a lawsuit over a Trump business.
This San Francisco judge’s erroneous ruling is a gift to the criminal gang and cartel element in our country.
White House statement
Trump is using a different blend of brute force and code words in his attacks on U.S. District Judge William H. Orrick III, the 63-year-old Obama administration appointee who ruled against the president Tuesday. A term such as “ridiculous” hits like a cudgel, while the White House’s reference to “this San Francisco judge” seems more of a whistle to the president’s conservative allies.
Trump got only 9 percent of the vote in San Francisco County last November, compared with Democrat Hillary Clinton’s 85 percent.
White House spokesman Sean Spicer said Wednesday on Fox News that “anybody that’s got a basic understanding of the Constitution” would agree with Trump and disagree with the judge, a former Justice Department attorney.
The White House’s characterization of Orrick as “unelected,” meanwhile, casts in a negative light the system of judicial appointments spelled out in the U.S. Constitution. The Senate voted on Orrick in 2013, confirming the Obama administration nominee by 56-41.
In his 49-page opinion Tuesday, Orrick sided with Santa Clara County and the city and county of San Francisco in their challenge to Trump’s sanctuary cities executive order. The initial order, issued Jan. 25, included a provision declaring that “sanctuary jurisdictions shall be ineligible to receive federal grants.”
“If there was doubt about the scope of the order, the president and attorney general have erased it with their public comments,” Orrick wrote. “The president has called it ‘a weapon’ to use against jurisdictions that disagree with his preferred policies of immigration enforcement.”
Asked about Orrick’s ruling Wednesday, Trump averred that he is “never surprised by the 9th Circuit,” reinforcing an early morning tweet in which he declared that it “has a terrible record of being overturned (close to 80 percent).”
Orrick is a district court judge and is not part of the 9th U.S. Circuit Court of Appeals, although the latter will hear the Trump administration’s appeal. Its supposed liberal leanings have made it a frequent target for conservatives, but its reversal rate at the Supreme Court is often exaggerated.
Last term, the Supreme Court reversed the 9th Circuit in 8 out of 11 decisions reviewed. Five other appellate circuits likewise had reversal rates above 70 percent. In the term that ended in 2015, 10 appellate circuits, including the one on which Gorsuch was serving, had reversal rates higher than the 9th Circuit.
On May 15, a three-judge panel of the 9th Circuit meeting in Seattle will hear the Trump administration’s appeal of a Hawaii-based federal judge’s decision blocking the president’s revised travel ban. In that case, it was Trump’s top law enforcement officer who lashed out.
“I really am amazed that a judge sitting on an island in the Pacific can issue an order that stops the president of the United States from what appears to be clearly his statutory and constitutional power,” Sessions said on “The Mark Levin Show.”
Subsequently pressed about his comments, concerning a Senate-confirmed federal judge serving in the nation’s 50th state, Sessions complained that “nobody has a sense of humor anymore.”