Republicans are scurrying away from Donald Trump’s racist attacks against a judge — but it’s right in line with the GOP’s ongoing assault against an independent judiciary.
Sen. Elizabeth Warren (D-MA) makes that point in a speech blasting Trump as a “loud, nasty, thin-skinned fraud,” but she said his insistence that U.S. District Judge Gonzalo Curiel cannot be impartial because of his ethnicity is little different from previous GOP attacks on judges and the courts.
“Trump isn’t a different kind of candidate,” Warren says. “He’s a Mitch McConnell kind of candidate. Exactly the kind of candidate you’d expect from a Republican Party whose ‘script’ for several years has been to execute a full-scale assault on the integrity of our courts.”
Let’s take a look at some examples of times when Republicans have politicized the courts and attempted to undermine their independence.
Perhaps the closest analogy to Trump’s attacks on Curiel’s integrity were efforts to force a federal judge off a challenge to California’s voter-enacted same-sex marriage ban because he was gay. U.S. District Judge Vaughn Walker, who had been appointed by President George H.W. Bush, ruled Prop 8 was unconstitutional — but backers of the anti-LGBT measure wanted the ruling overturned after learning the judge was in a long-term, same-sex relationship. Conservatives argued Walker stood to personally benefit from his ruling, but a federal court disagreed.
Sen. Mitch McConnell (R-KY) blasted Trump’s racist comments as “stupid” and urged the presumptive Republican presidential nominee to “get on script.” But the Senate Majority Leader has undermined the independence and integrity of the judicial branch by ordering an unprecedented holdup of the president’s constitutional duty to nominate judges to the U.S. Supreme Court for partisan purposes. Within hours of Justice Antonin Scalia’s passing, McConnell flatly stated that “this vacancy should not be filled until we have a new president.” Sen. Chuck Grassley, the chairman of the Senate Judiciary Committee, refuses to hold hearings for nominee Merrick Garland — even though they might, in a cynical display of naked partisanship, quickly confirm him if Hillary Clinton wins. One conservative legal activist — and voter fraud crusader — suggested Scalia should be able to decide cases from beyond the grave until a Republican president names his replacement.
Sen. Ted Cruz (R-TX) proposed a radical change to the U.S. Constitution to fundamentally challenge the Supreme Court’s independence. The Tea Party senator and failed GOP presidential candidate proposed a constitutional amendment that would allow justices to face periodic retention elections so conservative voters could punish the majority who upheld a key portion of the Affordable Care Act and essentially legalized marriage equality. “It was five unelected lawyers setting themselves up’ – and these are Scalia’s words – ‘as the rulers of all 320 million Americans,’” Cruz told Fox News. “It was illegitimate, and it was wrong.”
Republican lawmakers are playing partisan games with federal courts, as well. GOP lawmakers are bowing to pressure from conservative activists to obstruct the nominating process for President Barack Obama’s federal court nominees. Their stalling has left 75 vacancies on the lower courts — nearly twice as many as last year — and 31 of those vacancies are considered judicial emergencies because there aren’t enough judges to hear cases piling up in court. Groups like the anti-LGBT Family Research Council, which organized “Justice Sunday” rallies to pressure Democrats to confirm George W. Bush’s judicial nominees, and the Judicial Confirmation Network have sharply reversed their position now that Obama’s in the White House. The Judicial Confirmation Network hilariously changed its name and its mission under a Democratic presidency. “It would be political malpractice for a GOP Senate to confirm an Obama nominee,” said Carrie Severino, policy director for what is now called the Judicial Crisis Network.
The GOP assault on judicial independence is nothing new, of course. Complaints about “activist judges” have become a reflexive talking point like “liberal media” and “tax-and-spend liberals.” The term was actually coined by liberal historian Arthur Schlesinger Jr., who failed to precisely explain what he meant, but has been adopted by conservatives to broadly define court rulings they don’t like. Conservatives hold up Scalia as a perfect example of judicial restraint, an originalist who closely hews to the founders’ intent when deciding constitutional law. But that reputation is shredded by his vote with the majority in Bush v. Gore, which went the way Republicans wanted but essentially violated the most fundamental conservative principles — except, perhaps, the partisan impulse to undermine public trust in the courts. “The case didn’t just scar the Court’s record; it damaged the Court’s honor,” wrote Jeffrey Toobin in The New Yorker.
Some Republican lawmakers have made violent threats, thinly veiled or otherwise, against judges over rulings they didn’t like. Sen. John Cornyn (R-TX), a former Texas Supreme Court judge himself, responded in a very curious way to the unrelated ruling in the Terri Schiavo case and the 2005 murders of an Atlanta judge and the family members of a Chicago judge. “I don’t know if there is a cause-and-effect connection, but we have seen some recent episodes of courthouse violence in this country,” Cornyn said. “And I wonder whether there may be some connection between the perception in some quarters, on some occasions, where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in, engage in violence.” Conservative commentator Ann Coulter jokingly suggested putting rat poison in then-Justice John Paul Stephens’ “creme brulee.” Justice Ruth Bader Ginsburg blamed Cornyn for indirectly contributing to the deluge of death threats she and former Justice Sandra Day O’Connor received.
Newt Gingrich blasted Trump’s comments about the judge as “inexcusable,” but the former House Speaker may have outdone his potential running mate in attacking the independent judiciary. Gingrich said during his failed bid for the 2012 GOP nomination that, if elected president, he would simply ignore Supreme Court decisions he didn’t like. He even suggested impeaching judges and abolishing entire courts, including the Ninth District Court of Appeals, if he disagreed with their rulings. “I’m fed up with elitist judges” who seek to impose their “radically un-American” views, Gingrich said at the time. During his own unsuccessful GOP presidential bid, Mike Huckabee urged Americans and future presidents to ignore the Supreme Court’s ruling on marriage equality. Another failed GOP candidate, Rick Santorum, agreed: “The stakes are too high and the issue too important to simply cede the will of the people to five unaccountable justices.” Cruz agreed and compared the ruling to “Nazi decrees.”
Trump’s comments about the judge presiding over his fraud case, which he’s been saying almost word-for-word for months — combined with his blatantly unconstitutional proposals to ban Muslims from the U.S. or make it easier to sue journalists who criticized him — raise some obvious and troubling concerns about authoritarianism. Sen. John McCain (R-AZ) and other Republicans say the constitutional system of checks and balances would limit the harm Trump could do — but he’s just be the latest in a long line of GOP attacks on the judiciary branch, its integrity and its legitimacy.