In the New York Times, Eric Posner writes: Gorsuch Must Condemn Trump’s Attack on a Judge. From the introduction:
Judge Neil Gorsuch, President Trump’s nominee for the Supreme Court, must publicly condemn the president’s attack on the judge who blocked his immigration order. Judge Gorsuch’s sterling credentials notwithstanding, his supporters in the legal community should withdraw their backing for his nomination if he fails to do so.
After Judge James Robart’s ruling Friday evening, Mr. Trump wrote on Twitter, “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” Mr. Trump may be right that the order will be stayed or overturned — the legal merits are tricky, and Judge Robart has not heard full briefing of them yet. But the attack on Judge Robart’s integrity is indefensible.
Federal judges have frustrated American presidents since the founding. Thomas Jefferson fulminated against judicial overreach and tried to get a Supreme Court justice impeached. Andrew Jackson disregarded a judicial order from the Supreme Court, Abraham Lincoln suspended the writ of habeas corpus and Franklin D. Roosevelt tried to pack the Supreme Court with his own appointees after it blocked many of his New Deal reforms. In his 2010 State of the Union address, President Obama criticized an opinion of the Supreme Court on campaign finance reform in front of some of the justices.
But, by and large, presidents have respected the federal judiciary. As far as I know, no president has publicly challenged the integrity of a judge who has ruled against him. Mr. Trump, as in so many other cases, has broken new ground.
And quoting from one of Judge Gorsuch's opinions:
The framers lived in an age when judges had to curry favor with the crown in order to secure their tenure and salary and their decisions not infrequently followed their interests. Indeed, the framers cited this problem as among the leading reasons for their declaration of independence. … To this day, one of the surest proofs any nation enjoys an independent judiciary must be that the government can and does lose in litigation before its ‘own’ courts like anyone else.
Right you are, Judge Gorsuch. Now say it again.
(Thanks to Michael Perry for the pointer).
I was nodding agreement … but then I thought: wait, who was the author that, not so long ago, said we lived "After the Madisonian Republic"? Who embraced an executive "unbound" by law and saw us on the road to plebiscitary democracy? Who thought the appropriate guide for the U.S. executive was not the American framers with their quaint unworkable ideas of separation of powers but the Weimar-era German writer Carl Schmitt? Yes, that was Eric Posner in 2010 (see my review here).
No modern academic has done more to exalt the executive and belittle separation of powers than Professor Posner. Perhaps in doing so he was not thinking he would see the sort of executive he sees now, but perhaps he should have thought about that more carefully. (One could say the same for Carl Schmitt). So no, you cannot spend 200+ pages arguing for an unbound executive in 2010 and then, when you get one you don't like, credibly rediscover Madison's Republic.
And in the end, Posner gets it wrong anyway. The way to defend separation of powers is to defend separation of powers. The role of a judge or Justice (or nominee) is not to comment extrajudicially on the political actions of the President (however comment-worthy they may be). The role of a judge is to speak to executive action through judicial opinions when a case or controversy arises, as Judge Gorsuch has done. No more need be said. The alternative would further politicize the judiciary, leading judges down a road where they might be expected extrajudicially to condemn every sort of presidential mischief or else be held implicitly to condone it.
UPDATE: At his blog, Professor Posner has a post, pre-dating his New York Times article, discussing the relationship between The Executive Unbound and the Trump presidency: The Executive Unbound, Trumped (thanks to Will Baude for the pointer). He also has a post responding to various criticisms of his New York Times article, here, and some further thoughts (which I don't find persuasive) on Judge Gorsuch's supposed obligation to condemn the President's comment, here.
From the former post:
The popular interpretation of The Executive Unbound was always a caricature. The Executive Unbound compared two systems of government: the “liberal legalism” model in which Congress takes the lead in making policy within a system of separation of powers; and the “presidential primacy” model in which most policymaking takes place in the executive branch, by regulatory agencies under the broad supervision of the president. Our argument was that while the liberal legalism model remains the official story, the presidential primacy model more accurately depicts the workings of the government.
… We argued that the long-term trajectory in favor of presidential power—more generally, the centralization of power within the national government in the office of the presidency—reflects economic, political, and technological trends that are (more or less) inevitable, and in the face of which the separation of powers system gridlocks. To that extent, if you want government to govern, you need to learn to live with presidential primacy.
While the title of the book and some passages may have led readers to think that the book imagines that the president is subject to literally no constraints from Congress and the courts, that was never the argument. The book would make little sense if it was. One chapter discusses presidential power during emergencies; the argument that the president’s freedom of action expands during emergencies would make little sense if the president’s freedom of action was already at a maximum during normal times. The book observes that most of the expansion of executive power took place through voluntary delegations by Congress, which, at least formally, retains the power to withdraw those delegations or impose additional constraints on them. And the book describes a historical process that is still going on; it does not claim that we have reached an endpoint of maximal presidential power, whatever that would mean.
I think that's generally a fair description except that in the last quoted sentence I would say that "the book celebrates a historical process that is still going on…"
Posted at 6:36 AM