The legal issues involving President Trump’s travel ban executive order are fascinating and complex. But equally significant have been the President’s attacks on the judiciary. It is one thing for a President to say that he disagrees with a ruling, that he has confidence in the constitutionality and legality of his actions, and that he is instructing his attorneys to appeal—but that is not what Trump has done. Instead, he has attacked the district court judge who issued the nationwide temporary restraining order as a “so-called judge,” he has called the Ninth Circuit opinion denying a stay “disgraceful,” and he has urged people to blame the judiciary if “something happens.” These kinds of statements reflect a dangerous attack on the very legitimacy of an independent judiciary.
On February 7, I joined a bipartisan group of about 140 lawyers who practice in federal court or who have held federal clerkships in writing to the Acting Attorney General and Acting Solicitor General asking them to advise the President to refrain from making personal attacks on members of the judiciary. The letter has received national coverage and you can read it here. The letter emphasized the central role of judicial review to our system of government and concluded that “we should not abide the most powerful executive official in the country demeaning and disparaging the judiciary through personal attacks on a sitting federal judge.” Although the President has continued to make disparaging remarks about the judiciary, albeit without singling out particular judges in quite the same way, it is notable and encouraging that lawyers across the political spectrum joined to defend the court system.