CNN’s Selective Outrage on Judicial Criticism

CNN pundit Errol Louis on Monday wrung his hands over President Donald Trump’s criticism of the federal judge who blocked his temporary travel ban.

Louis, a political anchor at Spectrum News, compared Trump’s tweet about U.S. District Judge James Robart to his criticism during the campaign of the judge presiding over a civil lawsuit against Trump University.

“It’s very different, because now he speaks with the authority of the presidency, with the authority of the executive branch.”

“It’s very different, because now he speaks with the authority of the presidency, with the authority of the executive branch,” Louis said. “This is the executive branch attacking the judicial branch. Doing it in a sort of unseemly, ad hominem way. But also kind of creating confusion about how our system works.”

Unmentioned in the CNN segment — by either Louis or the other guests — is that Trump is not the first president to criticize the judicial branch. Trump’s predecessor, President Barack Obama, famously called out the Supreme Court justices — to their faces — during the 2010 State of the Union address. The president did not like the court’s 5-4 ruling in Citizens United v. FEC, striking down limits on political speech.

“Last week, the Supreme Court reversed a century of law that I believe will open the floodgates for special interests — including foreign corporations — to spend without limit in our elections,” he said.

As a purely factual matter, the president overstated the impact of the ruling, earning him a “Mostly False” rating by the fact-checking site PolitiFact. But the public criticism raises the same issues as Trump’s. And it wasn’t the isolated case. He fired a warning shot across the bow of the Supreme Court as the justices were considering the constitutionality of his Affordable Care Act.

“Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress,” Obama said at the time.

In March 2014, Obama told Reuters that there was “not a plausible legal basis” for striking down the law. He made clear that if people lost their health insurance, it would be the fault of the Supreme Court.

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“Look, this should be a pretty straightforward case of statutory interpretation,” he said. “If you look at the law, if you look at the testimony of those who are involved in the law, including some of the opponents of the law, the understanding was that people who joined a federal exchange were going to be able to access tax credits just like if they went through a state exchange.”

Three years later, when the high court was considering whether the subsidies to help people buy insurance applied only to residents of states that had set up their own health insurance exchanges, Obama implicitly criticized the justices for even considering the issue.

“Frankly, [the case] probably shouldn’t even have been taken up,” he said.

Those and many other comments made by Obama while health care cases were pending before the Supreme Court are chronicled in Josh Blackmman’s book “Unraveled: Obamacare, Religious Liberty, and Executive Power.”

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Trump’s language was more pointed. He called Robart a “so-called judge,” called his ruling “ridiculous,” and urged people to blame him if something bad happens.

“But they conveyed the same message,” said Blackman, a professor at South Texas College of Law in Houston.

Blackman said Trump, like all presidents, has the same First Amendment right of any citizen to criticize a judge. He agrees with other critics that the president should not blast judges or second-guess their motives. Doing so undermines public confidence in the judiciary, which has no independent power to enforce its rulings. The system only works if the other two branches respect and follow the judiciary’s decisions, he said.

Some commentators, however, seem to be displaying a bit of selective outrage at Trump’s judicial criticisms.