Former federal judge Micahel Luttig writes I nthe NY Times today:
Mr. Trump seems supremely confident, though deludedly so, that he can win this war against the federal judiciary, just as he was deludedly confident that he could win the war he instigated against America’s democracy after the 2020 election.
The very thought of having to submit to his nemesis, the federal judiciary, must be anguishing for Mr. Trump, who only last month proclaimed, “He who saves his Country does not violate any Law.” But the judiciary will never surrender its constitutional role to interpret the Constitution, no matter how often Mr. Trump and his allies call for the impeachment of judges who have ruled against him. As Chief Justice John Marshall explained almost 225 years ago in the seminal case of Marbury v. Madison, “It is emphatically the province and duty of the judicial department to say what the law is.”
If Mr. Trump continues to attempt to usurp the authority of the courts, the battle will be joined, and it will be up to the Supreme Court, Congress and the American people to step forward and say: Enough. As the Declaration of Independence said, referring to King George III of Britain, “A prince, whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.”
We like to think that the courts are apolitical but with the country polarized the way it is and the very partisan judges Trump put on the bench in his first term, it’s understandable that we see them through the prism of partisanship. And after some of the Supreme Court rulings these past few years it’s hard to have much faith that they’re going to defend us from the MAGA purge. They haven’t shown any respect for precedent and it’s clear that at least three of the members are obviously hardcore MAGA themselves.
But there is another way to look at this. The main excuse we get from many Republicans on background as to why they support even Trump’s most monstrous policies is that their MAGA constituents will throw them out of office. This has been recently expanded to included the threats Musk is making to primary anyone who looks at him sideways.
But federal judges don’t have to worry about that. They have lifetime appointments and Musk’s money is meaningless to them. Yes, they do worry about death threats and that’s a concern. But the vast majority of them are well-off and can afford security and many live pretty cloistered lives. They aren’t like politicians who have to be out in public all the time among the people. (I suspect that a lot of people use this as an excuse to do what they want to do anyway.)
And needless to say, despite the shrill cries of impeachment, they do not have the votes in the Senate to convict so there is really no fear of that. I suppose they think they will intimidate the judges into ruling for them because they will be embarrassed by the impeachment proceedings but on some level I think they know that the risk is huge that public will not approve of such a spectacle and it may even hurt their cause. They are not serious about this and the judges know it.
The point is that the incentives for judges are different than they are for politicians. They can do the right thing without having to worry as much about Trump’s tweets. So we are going to find out how many of them are actually true believers in Trump’s authoritarian cult and how many respect the rule of law and believe in American democracy.
Obviously, this is a separate question from whether or not Trump will defy them. We really have no idea what they will do in either case. But these cases are going to illuminate for us just how potent the MAGA threats really are. These judges have much less to fear than anyone else. Will they stand up or not?