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Wednesday, December 12 , 2018, 2:01 pm | Fair 63º


Susan Estrich: ‘Nothing’s As Bad As the 9th Circuit’? Trump Is Misguided

"Nothing's as bad as the Ninth Circuit": That is the president of the United States talking to the nation's governors on Monday about the U.S. Court of Appeals for much of the western United States, including California.

Nothing is worse than a court that disagrees with you?

I can think of many things that are far, far worse. How about a nation without the rule of law, where court decisions are routinely ignored, judges are political fodder and disputes are resolved by force and not by law?

Sound good, Mr. President? Is that what your rhetoric is all about?

He attacks the courts, attacks the judges, attacks the FBI, attacks the Justice Department: Never in my lifetime have we had a president with less respect for the institutions of society that are literally the bedrock of our democracy. Never have we had a president with such profound contempt for the rule of law.

And what do you get when the most powerful man in the land has no respect for the rule of law?

You get lawlessness, which is a whole lot worse than a court that doesn't agree with your decisions, or, in this case, has the audacity to maintain the status quo while the courts determine whether President Trump's plans to deport "Dreamers" — immigrants who were brought to this country as children and have grown up as Americans — is lawful. In other words, Trump is angry that these children and young adults are not being deported fast enough.

So what if it should turn out that the president's plan is unlawful? Clearly that wouldn't trouble President Trump.

He sounds like a leader who thinks he is above the law — more like Vladimir Putin than an American president.

In Marbury v. Madison, Chief Justice John Marshall established the principle that the courts — not Congress or the president — decide whether laws are constitutional. Of course, the courts don't have armies to enforce their decisions; they have court-martials, who make sure the courthouses are safe. The martials don't go out and tell Immigration and Customs Enforcement what to do. The president surely knows that.

The decisions of the courts in this nation are followed not because the courts have armies but because this is a nation under law, a nation of laws and not men, and respect for the rule of law is at its core; because these principles are so fundamental, so basic, so widely respected, that it has mostly gone without saying that they will be followed.

In the 1950s, in the wake of the Supreme Court's decision in Brown v. Board of Education, there was a serious question whether the "massive resistance" to integration organized by certain Southern governors and segregationists would undermine the court's authority. President Eisenhower sent in the National Guard, who escorted the students into school. The president stood up to the racists, stood up for the rule of law. He may well have disagreed with the court's decision or with how the lower courts were interpreting it, but he understood that the rule of law was more important than all of that. It wasn't the National Guard that ensured that the Brown decision would be enforced; it was the respect for the court demonstrated by the Republican president.

What part of that does this president not understand?

In 1974, President Nixon sought to fire the Watergate special prosecutor, Archibald Cox. He finally found someone in the Justice Department who would fire Cox (the attorney general and his deputy having resigned rather than fire the legendary professor and public servant), only to be forced to appoint the esteemed lawyer Leon Jaworski to replace Cox. Jaworski sought the same tapes from the president: Would President Nixon obey the Supreme Court? He resigned.

It should come as no surprise that a president who governs by tweets and shoots first and checks later would attack the courts, just like he attacks everyone else who disagrees with him. But courts aren't like everyone else. The rule of law depends on our respect for them, respect that this president serves to undermine without even appearing to realize what he is doing. And that is a whole lot scarier than Nixon on his worst day.

Susan Estrich is a best-selling author, the Robert Kingsley Professor of Law and Political Science at the USC Law Center and was campaign manager for 1988 Democratic presidential nominee Michael Dukakis. Click here to contact her or click here to read previous columns. The opinions expressed are her own.

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