The Road Rage Defense: How The Media Has Ignored A Pattern Of Democratic Attacks On The Judiciary

Below is my column in The Hill newspaper on the recent threat from Sen. Chuck Schumer directed at two members of the Supreme Court. The column explores how this attack was neither isolated nor unique. Despite any substantive coverage in the media, Democratic politicians are increasingly attacking the Court and the judicial system. I have joined in the criticism of President Donald Trump over his verbal assaults on judges, Yet, there is the paucity of attention given to the same types of attacks coming from Democrats.

Here is the column:

“I am from Brooklyn.” That statement made by Senate Minority Leader Charles Schumer was meant to excuse threats he has made against two conservative justices the day before on the steps of the Supreme Court. His “apology” seemed to be a mix of claiming a license for all New Yorkers to use “strong language” and claiming justification because some justices are “working hand in glove” with Republicans. This was like a bizarre road rage defense from a Brooklyn driver who apologizes for the situation but explains that it was all due to the lousy driving of the other guy.

The problem is that this the latest in a pattern of Democratic leaders attacking and threatening jurists if they rule the “wrong” way in certain cases. Although Senate Minority Whip Richard Durbin advised the public “not to dwell” on the comments by Schumer, there is much more to dwell on than just this incident. Indeed, Democratic senators, including Durbin, have made threats against the Supreme Court and the judiciary.

It is certainly true that the media has not dwelled on these attacks, at least not from Democrats. Another New Yorker has used “strong language” to attack jurists, and many of us have criticized President Trump for those comments. Not surprisingly, Schumer has not cited a New York license for Trump to do as he did, perhaps since Trump was born in Queens. Indeed, Schumer recently denounced Trump for criticizing the judge in the trial of Roger Stone. Schumer called on Chief Justice John Roberts to “defend the independence” of the judiciary from such unwarranted attacks.

Roberts did speak out, but against Schumer, not Trump. The reason was, unlike Schumer, Trump did not threaten the judge. The criticism was still highly inappropriate, as many of us said at the time, but was not a threat. It was not Schumer saying that two conservative justices “will not know what hit” them if they “go forward with these awful decisions.”

Schumer was referring to a specific case and warning Justices Brett Kavanaugh and Neil Gorsuch that they “will pay the price” if they rule against his view of the proper outcome. When Roberts condemned that outrageous attack, Schumer criticized Roberts until pressure grew for an apology. Democratic senators opposed censuring Schumer, while Durbin and others also criticized Roberts for publicly rebuking him.

The reckless rhetoric by Trump is always widely covered. Yet much of the media has ignored equally troubling attacks from Democrats. Not long ago, Durbin joined Senators Mazie Hirono, Kirsten Gillibrand, and Richard Blumenthal in a brief written by Senator Sheldon Whitehouse. The brief contained a raw threat that if the justices did not side with New York in a gun rights case, the senators would stack the court with new members. Whitehouse warned the court to “heal itself before the public demands” that it be “restructured in order to reduce the influence of politics.”

By “influence of politics,” Whitehouse meant ruling against the views of Democrats, and he threatened political retaliation in response. In recent presidential debates, Democrats have applauded wildly as candidate after candidate pledged to impose an abortion litmus test on future Supreme Court nominees. For decades now, Democrats have criticized Republicans over suspected abortion litmus tests, denouncing those as an attack on judicial independence and integrity. Democrats have also embraced the “Ginsburg Rule,” whereby nominees refuse to answer specific questions on how they would rule on issues that might come before them.

Democrats now promise to get commitments on how justices will rule, and it is not clear how broad such litmus tests will become with late term abortions or state requirements on licensing for services. Presumably, additional litmus tests will apply to other issues, from religious rights to gay rights, as nominees check off positions like a dim sum menu.

Trump has been denounced widely for referring to “Obama judges,” and Democrats applauded Roberts when he rebuked him by declaring, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

Yet there has been little coverage of or outcry against the attacks by Democratic leaders on “Trump judges” and “Trump justices.” Former candidates have argued in debates over who voted more often against “Trump judges.” Senator Amy Klobuchar boasted of opposing two-thirds of all Trump nominees, but that was still not enough for the liberal group Demand Justice, which expressed disappointment with her.

Somehow it is perfectly fine to suggest that Trump judicial appointees rule on the basis of politics instead of principle. That was evident in the road rage apology of Schumer, who said he had been provoked because Republicans and the courts “working hand in glove” to change the law in areas like abortion. Thus, judges appointed by Democratic presidents are entitled to presumption of independence, while Republican nominees to the courts are regularly denounced as partisan robed robots.

The Framers gave the appointment power to presidents to allow our judiciary to change with society. Presidents throughout history have always used their appointments to shift the ideological divide on the courts. President Obama used his authority to appoint two justices who routinely vote in a bloc with liberal members. What is viewed as simply “correct” in liberals such as Justices Elena Kagan and Sonia Sotomayor, however, is viewed as utterly dishonest bias in conservatives.

During the Kavanaugh confirmation hearings, Whitehouse declared that he uncovered an unmistakable “pattern evidence of bias” by the “Roberts Five.” The five conservative justices often vote as a bloc, he said, and “no Democratic appointee joins them.” He blissfully ignored that on the other side of the divide are four liberal justices who vote as a bloc too.

Sadly, none of this appears to warrant more media coverage or analysis. It appears from that lack of coverage that there is less of a Brooklyn than of a Democratic license when it comes to attacks on the judiciary.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

35 thoughts on “The Road Rage Defense: How The Media Has Ignored A Pattern Of Democratic Attacks On The Judiciary”

  1. Jonathan: Chuck Schumer’s intemperate comments about SCOTUS should be condemned. But in comparison to Trump’s relentless attacks on individual judges and the judiciary in general it’s hard to make the case that Democrats have engaged in similar behavior. Even before becoming President Trump attacked judges for decisions he didn’t like. In 2016 US District Judge Gonzalo O. Curiel ruled against Trump University in a class-action lawsuit. Trump responded with a racist comment about Judge Curiel’s “Mexican heritage”. The same year Trump said Justice Ginsburg should resign because of her comments about his candidacy. He said: “Her mind is shot!…” Last month Trump demanded that Justices Sotomayor and Ginsburg recuse themselves from any case that he is involved in. In 2018 Trump attacked Judge Jon Tigar of the Ninth Circuit for ruling that the administration must accept asylum claims regardless of where migrants entered the US. Trump even suggest the Ninth Circuit should be broken up.This drew an unusual rebuke from Chief Justice Roberts. In the Roger Stone case, in an unprecedented move, Trump had his attorney general intervene and then attacked the jurors and Judge Amy Berman Jackson for the verdict and sentence. Like his attacks and lawsuits against the press, Trump wants a supine judiciary that will do his bidding. In an article in The Atlantic,(3/4/20) Garrett Epps, professor of constitutional law at the University of Baltimore, writes: “When Trump and his friends are concerned with a case, the president wants to choose, or intimidate, both judge and jury; participants in the nominally independent judicial process must now fear not only his criticism but threats or even violence from his supporters”. Chuck Schumer called for Justice Roberts to “defend the independence of the judiciary” and for good reason. As professor Epps points out in his article, SCOTUS has lost its independence and “has taken on the role of Trump’s enforcer,,,” Schumer might have expressed him more artfully but we should all be concerned by the direction of SCOTUS that has given up its “independence” in favor of rubber stamping Trump’s agenda.

    1. Again, your position is indefensible and asinine. Judges are not properly immune from rebuke. They are properly immune from manifest threats. This isn’t that difficult.

      1. DSS, it appears that there is a terrible misunderstanding of some of the public in relation to the Supreme Court. SCOTUS works for the people not the other way around and criticism of how they do their job is fair game. If they can’t handle it they shouldn’t be on the court. Epps, a law professor should know better. It’s not Trump’s court anymore than it was Obama’s court with his two appointees. With statements like that Epps should resign his position.

        The public, like Dennis also don’t seem to know the difference between criticism and threatening individual judges or the Supreme Court as a whole. Emotions seem to rule over intellect and knowledge. That will be the cause of the downfall of our Republic.

    2. DEMONkrap Schumer violated Federal law and needs to be charged, tried, convicted, and sent to prison. Federal law prohibits threatening SCOTUS within X distance of the court room.

      DEMONkrap speak translated: DEMONkrap parked on freeway emergency lane in vain attempt to negotiate his speeding ticket: “Officer; why do I deserve a ticket? Look at all these other cars speeding by, going faster than I was traveling.”

  2. Demoncraps are a mixture of Hitler’s Gestapo and Orwell’s “Thought Police.” Up to about 10-15 years ago one could make a reasonable argument to support Demoncraps; today that’s impossible. The Party should be wiped off the map and replaced with something else; what I don’t know.

  3. This is the result of “Justice for me, Non for Thee”.
    Until an example is made by the court system (highly unlikely) by throwing the book at some of these criminals, there will be no change in behavior. In re Lord Of The Flies.

  4. We have become super partisan regarding the Supreme Court. One has to ask themselves why? The judicial power of the nation is vested in the Supreme Court whose duty it is is to make sure the laws of the nation comply with the Constitution. The initial duties of the federal government were limited by the Constitution because we had ‘sovereign’ states who based on our federalist system were supposed to be in charge of those things not delegated to the federal government.

    Congress passes laws and if they foresee a Constitutional problem there is always the remedy of a Constitutional amendment.

    The problem arose when some believed that their view was supreme over their fellow citizens, the Constitution and its requirement of a constitutional amendment. Since they were unable to successfully effectuate their ideas they turned the Supreme Court into a quasi legislature that was able to permit the passage of laws that didn’t meet Constitutional scrutiny.

    The amendment process was skipped almost entirely so today we have exactly the Supreme Court some have fought for, a court that has two roles, one as a court of law deciding Constitutional issues and the other as a legislative branch which is political and has caused the hyperpartisan attacks we see today.. For the most part the abuse of the Supreme Court in our lifetimes has come from the left. We can easily see that today. FDR tried to pack the court and today Democrats are threatening to pack the Supreme Court again. Democrats are also threatening members of the Supreme Court by name where even innuendo and character assasination has enterred the confirmation process.

  5. You know, maybe Shumer deserves an Irish Poem??? Mainly because he is such a lying POS. Once, he knew why illegal immigration was bad and then he figgered out how illegal immigrants could prop up the Democrats, so he pretended to “evolve.” He is worthless. That is why he is so preachy and mean all the time. He is a cancer on society.

    A Puck* of Lies???
    An Irish Poem by Squeeky Fromm

    There once was a fellow named Schumer –
    A typical lib baby-boomer.
    Despite how he spoke,
    He tweren’t really “Woke” –
    He’s malignant, just like a bad tumor.

    Squeeky Fromm
    Girl Reporter

    *Puck – Definition of puck. (Entry 1 of 2) 1 archaic : an evil spirit : demon. 2 : a mischievous sprite : hobgoblin specifically, capitalized : robin goodfellow.

    1. Always the best poems for Squeeky, a true natural gift, from God. We all can’t spit rhymes like this…

  6. Corona, CA. Yes. There is a town in CA named that. We need to monitor it for virus infections. It is doomed.

  7. The good news is that the ABA is a discredited legal organization populated by anarchists, “activists” and blowhards. Thankfully Trump is stacking the US Courts with Antonin Scalia types which should put a halt to judicial activism.

    Now how to stack the US Congress with men and women that command awe and respect, and flush the contagion that Sheila Jackson Lee, Frederica Wilson, Nancy Pelosi, Maxine Water and Jerry Nadler shed on our government?

  8. Gee, I guess being a snowflake is one way to deal with the inevitable backlash of electing a trash talking, lying birther into the oval office. Or a supreme court nominee that loses his mind and starts yelling at at Senators for ‘Clinton’ conspiracy during his appointment hearing. Insanity breeds insanity, Jon. Let’s just call it what it is.

  9. Judges are chosen by politicians for their political beliefs with the expectation that they will rule inline with those political beliefs. That is the system we have and I do wish we would stop pretending otherwise. There are “Obama judges”, and “Trump judges”, and it does show in their rulings. Ignoring this reality is not helpful to anyone. If we truly wanted unbiased judges, then we would change the way we nominate and approve them. I also want to say how absurd it is that we think it is wrong to push judicial nominees about their ideology during their hearings. They have ideologies anyhow, so it is better that we just bring it out the open.

    1. If you weren’t a knucklehead, it might occur to you that modes of jurisprudence are not ideologies. Ideologies inform statutory legislation. The point of judicial review is to compare superordinate and subordinate law and ascertain if the the latter is consistent with the former. That’s it. It’s not to pretend subordinate law is inconsistent with superordinate law because the subordinate law incorporates policies you don’t care for; if you don’t care for the policy, change the policy. Don’t pretend your opposition has no right to make policy when they’re in the majority.

      People like you are a civic malignancy.

  10. Again, Mr. Turley, these are NOT the same types of attacks. Making physical threats while inciting an already over-excited crowd are not the same as opining, even if inappropriately, whether judges should recuse themselves or that they may be biased. Other than that, you are most often on the mark.

  11. The Canons of Journalism were an attempt to avoid precisely what we have now – journalism widely idstrusted because it takes sides in politics. No one in journalism makes even a token effort to balance coverage of events with political implications. They haven’t done so for decades. Even wikipedia slants its articles on politically contentious issues (I’m an editor there and I’ve seen how their “consensus” rule has led to nakedly political editing of articles there.

    Why does Big Journalism do this? To sway their audiences into voting their way. And that’s precisely what happened, time after time. Rabid left-wingers like Schumer, Hirono, Schiff, Ocasio-Cortez and Pelosi run the Democratic Congressional Caucus because the big news operations on the Internet and broadcast television always takes side, and their customers vote accordingly.

    Where a broadcast network has both news and entertainment offerings, the entertainment shows are increasingly slanted leftward in their political comment. This is true even when, as is the case with ABC, shows which attract audiences such as “Last Man Standing” are cancelled (Fox’s entertainment division snapped that show up, unchracteristically for them – Fox’s entertainment side usually leans left and has done so since the late 1980s).

    It’s disingenuous to say “both sides do it” when most networks slant the political message in both news and entertainment firmly to the left. They won’t admit it, and they’ll keep doing it because they know the society they want. The only thing that will stop them will be a catastrophic event stemming from the political polarization they have spent decades carefully arranging.

  12. Again, Mr. Turley, these are NOT the same types of attacks. Making physical threats while inciting an already over-excited crowd are not the same as opining, even if inappropriately, whether judges should recuse themselves or that they may be biased. Other than that, you are most often on the mark.

  13. Those awful Democrats using words while those brilliant Republicans just use riffles! Oh and cars to go after people with whom they disagree. Don’t forget it was the Republicans who first used the “it’s an election year” defense to strip a sitting president of his constitutional right to appoint justices to the Supreme Court.

    But I digress, we were talking about how very bad Chuck Schumer is and how Dems always get what they want……ha ha ha.

  14. Criticism of judges is never inappropriate. ‘Inappropriate’ is a term favored by the lesser sort of elementary schoolteacher. The social unassailability of the judiciary is properly eliminated. They have behaved quite badly and merit little deference.

    Of course, Schumer didn’t criticize the judges (which would require at least some engagement with the case law they’ve generated). He directly threatened them. New York City has a degenerate political culture. One aspect of that is that it produces vicious sociopaths like upChuck Schumer (and their witless electorate imposes their degenerate choice on the rest of the state, which isn’t nearly as far gone as the Five Boroughs).

    1. Trump first! But that won’t happen because Trump is all powerful and, of course, a Republican. I misspoke he is THE Republican!

    2. Schumer should be forced to attend an Orthodox Jewish Temple but that would mean having a conversion and that would threaten the Jews in name only in Congress

  15. There is no real Media any more except for FOX, its 100% bash Trump, bash the Constitution, bash the Supreme Court. 24 7 Hatred – But, it Is interesting the ratings reveal CNN & etc sinking, top News shows are all FOX, except for UFO Rachel. How CNN stays in business I am not sure. ATT, its owner, appears they do not care?

    The only positive news on the Courts if they rule only on over turning Trump

    1. Fox isn’t any better than the other networks. They let Donna Brazile tell an invited panelist to one of their programs to go to Hell during a broadcast. If I watched Fox News (I haven’t in years), that would have ended it. No, the front office at Fox would televise their own circumcisions if they thought they’d get a ratings bump.

  16. The “gang of 5” are not conservative. They are right wing corporate Federalist judges who represent everything America is NOT supposed to be. All of the fascist trump “judge”appointees are the same, unfit to sit on any bench in the nation except the unemployment bench.

    1. As someone who was born in Brooklyn, I believe Schumer owes me and every other Brooklynite an apology. He sounded more like a mafia boss, than a United States Senator. I heard him threaten two specific Justices, in an attempt to intimidate them to vote the way he wants them to.

      President Trump never made any threats against any Justices. Before he asked them to recuse themselves, they made remarks that showed their open bias against him.

      Asking for them to recuse themselves in cases that involved him, was not only a fair request, but the Justices themselves should have apologized, but also stated that they WOULD recuse themselves in those cases to prevent any scintilla of bias from being perceived.

  17. Chucky boy Schumer… Sitting in a tree.
    Glasses down his nose and he wants to pee.
    He pees on republicons and artFays on the air.
    When push comes to shove he losses his hair.

Comments are closed.