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"I know there's a fear among the judiciary with what's being said," said John Muffler, a former U.S. marshal who teaches security at the Reno, Nevada-based National Judicial College. He cited professional contacts and email exchanges with judges.The president's critical comments have consequences, he added, because "people on the edge can easily be pushed over the edge once the rhetoric gets going." (Trump Attacks on Judiciary Raise Safety Concerns for Judges Fortune 11 Feb 2017)
The essay starts with the text of the initial Presidential tweet and the criticism that the tweet serves as evidence of the extent to which the 45th President is not acting "Presidential," at least as that term is implicitly understood by its authors and the class of which they are important members. But the criticism was not merely one of Presidential demeanor--that the 45th President is behaving badly in the bourgeois sense of that notion--but that this bad behavior will produce consequences detrimental to the interests of the Republic, in general, and more specifically to that portion of the Republic's affairs with respect to which both of the authors implicitly claim positions of influence.
On the other hand, in the marketplace for ideas, one that is now quite crowded through the magic of the Internet, these market distinctions may come to play a larger role than the engagement with the ideas they put forward. That commentary on political methodologies and valuation ought to trigger substantially more discussion. Status, perhaps, has become the great shill of ideas in an Internet age. That perhaps is the greatest insight of the essay--the embrace of the notion that individual, shorn of office, counts for nothing. Indeed, the very object of this essay--to rebuke a president for oafish remarks and to better educate him in the etiquette of his office (as the authors reprieve it to be sure)--suggests that the power of the tweet at the heart of the essay does not come form their ideas, or the extent of their offense, but from the status of the writer. It is status that gives power to ideas. And that, perhaps is the most ,lamentable truth to be extracted from this essay.
Standing up for ‘so-called’ law
The Boston Globe
By Martha Minow and Robert Post February 10, 2017
Last Saturday, President Trump tweeted, “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” In mocking Judge James L. Robart, the federal district court judge who stayed the president’s executive order banning travel for individuals from seven predominantly Muslim countries, Trump risks making an enemy of the law and the Constitution. He then expressed contempt for the deliberations of the three-member appellate court convened to review Robart’s order, calling the legal argument “disgraceful,” and remarking that a “bad high school student would understand this” — before the appellate panel unanimously left Robart’s order in place.
Now Trump is attacking anyone who calls him to account — senators, scientists, the civil service, the media, and the Democratic Party, to name a few. His approach divides the world between friends and enemies, vividly reminding us of the political philosophy of notorious theorist Carl Schmitt. Politics, Schmitt said, was an existential struggle for survival that requires us to destroy those who oppose us. It is no surprise, therefore, that Trump tells us that he is in a “running war” with the media, and that Trump’s trusted adviser, Stephen Bannon, instructs the press to “keep its mouth shut and just listen for while.”
Muslims are the latest enemy on Trump’s hit list. His recent executive order was plainly drafted to appeal to his supporters during the campaign. Because such a shocking proposal would violate sacred American traditions protecting religious freedom and nondiscrimination, he crafted the executive order in the close confines of the White House and refused to permit the relevant federal agencies with legal expertise — Homeland Security, Defense, State, Justice — to vet the order. The evident goal was to maximize the political impact of the order while minimizing the reasonable restraints that a respect for law might impose.
Trump’s executive order feeds the “clash of civilizations” narrative used by Islamic radicals to recruit those, including disaffected American citizens, who would attack this country. It turns the United States from a shining beacon into a scene of religious and ethnic discrimination. It is no accident that anti-Semitism and reports of hate crimes are on the rise.
We are deans of respected law schools. We have dedicated our professional lives to the proposition that law overrides violence with reason. Law stands for what we have in common, not merely what divides us. Law respects disagreement; it patiently considers evidence and advocacy; it engages with the views of all. Each person — not just each citizen — is equal before the law. Created in ancient times to terminate endless cycles of vengeance and retribution, law substitutes official, publicly justified sanctions for animosity and enmity.
This is what is so radically disturbing about Trump’s attack on Judge James L. Robart, the George W. Bush appointee who temporarily suspended the enforcement of the executive order. If Trump believes he can make an enemy of the law and of the Constitution, then he has truly become a foe of the Republic, despite the oath he swore at his inauguration. The craft and professional culture of law is what makes politics possible; it is what keeps politics from spiraling into endless violence. By questioning the legitimacy and authority of judges, Trump seems perilously close to characterizing the law as simply one more enemy to be smashed into submission. At risk are the legal practices and protections that guard our freedom and our safety from the mob violence that destroyed democracies in the 1930s.
It is time for all who care about this nation to worry when the nation’s most powerful office is used to intimidate the institutions of law that have maintained American stability and prosperity since the founding of the Republic. Trump’s attack on the “so-called” Judge Robart and his “ridiculous” order exposes just how fragile our democracy is. The President’s own nominee for the Supreme Court, Judge Neil Gorsuch, has called Trump’s attacks on courts “disheartening” and “demoralizing.” We must be vigilant to preserve what makes America precious: the thirst for freedom and fairness, the demands of responsibility and cooperation, the solidarity that somehow makes e pluribus unum. Law is an essential medium of these virtues. If we are to keep the rule of law, it must not be a partisan question; it must not be the concern simply of lawyers. We must all defend it, passionately and whole-heartedly. Without the rule of law, we may have a “so-called” president who has in fact become a tyrant. Fundamentally, this moment is not about Trump. It is about all of us.
Martha Minow is the dean and professor of law at Harvard Law School. Robert Post is the dean and professor of law at Yale Law School.