WASHINGTON – President Donald Trump on Tuesday called on two liberal justices of the Supreme Court to recuse themselves from anything “Trump-related,” escalating an unorthodox battle with the judiciary from which even his own lawyers have advised retreat.
In tweets and comments at a news conference in India – and just a month before the Supreme Court is to consider congressional and prosecutors’ requests for the president’s closely guarded financial records – Trump targeted Justices Sonia Sotomayor and Ruth Bader Ginsburg.
Trump interpreted as biased a dissent from Sotomayor about his administration’s tendency to seek emergency interventions from the Supreme Court. He reminded Ginsburg of remarks she made about him as a candidate in 2016, for which she has expressed regret. His comments appeared to be based on a Fox News segment rather than a parsing of Sotomayor’s seven-page dissent in an immigration case.
The president’s broadside breached what normally is an arm’s-length distance between the White House and the high court, and cast the disagreements into starkly personal terms. It follows Trump’s recent attacks on Judge Amy Berman Jackson, who oversaw the conviction of his friend Roger Stone, and underscored complaints from Attorney General William Barr that the president’s tweets and statements were making it “impossible” for Barr to do his job.
Trump’s comments about Sotomayor and Ginsburg also brought complaints from the political left. “No president in modern time has shown greater disrespect for or worked to actively undermine the independence of the judiciary than President Trump,” said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law.
Social media weighed in as well: What about Justice Clarence Thomas, whose wife Ginni Thomas opines to the White House about personnel decisions? Can Justices Neil Gorsuch and Brett Kavanaugh be impartial about the man who appointed them?
The controversy is just the kind that Chief Justice John Roberts Jr., who presided over Trump’s Senate impeachment trial, always hopes the court can avoid.
“The point is when you live in a politically polarized environment, people tend to see everything in those terms,” Roberts said last fall.
A court spokeswoman on Tuesday said that Roberts, Sotomayor and Ginsburg had no comment on the president’s words.
In his tweet, Trump appeared provoked by a segment that Fox News host Laura Ingraham did Monday night about the dissent Sotomayor issued Friday night.
The court, with its five conservatives in the majority and four liberals dissenting, removed the last remaining obstacle allowing the Trump administration’s “public charge” rule to go into effect. The policy turns away immigrants who are likely to rely on public benefits to support themselves or their families.
Writing only for herself, Sotomayor complained that the federal government has been too quick to ask the Supreme Court for emergency relief from lower-court decisions that had not gone through the usual legal process.
“It is hard to say what is more troubling: that the government would seek this extraordinary relief seemingly as a matter of course, or that the court would grant it,” Sotomayor wrote.
The countervailing view, which two of her conservative colleagues had expressed in an earlier opinion, is that lower-court judges had been too eager to impose nationwide injunctions on administration policies, rather than allowing them to be implemented while challenged in court.
Neither opinion – the one written by Sotomayor or the other by Gorsuch and Thomas – specifically mentioned Trump or the administration.
But the segment by Ingraham was critical of Sotomayor’s opinion, and the president mentioned it specifically in his tweet. In the news conference, he seemed less familiar with what Sotomayor actually wrote.
“Her statement was so inappropriate,” Trump said. “When you’re a justice of the Supreme Court – and it’s almost what she’s trying to do is take the people that do feel a different way and get them to vote the way that she would like them to vote. I just thought it was so inappropriate, such a terrible statement for a Supreme Court justice to . . . “
A reporter asked what was inappropriate about Sotomayor’s complaint that the government was running to the Supreme Court too frequently.
“No, I don’t think that was it,” Trump responded. “But I think what she did say is she’s trying to shame – the way I look at it, she’s trying to shame people with, perhaps, a different view, into voting her way, and that’s so inappropriate.”
Ingraham criticized Sotomayor for not speaking out when Ginsburg during the 2016 campaign called Trump a “faker.” Ingraham said Ginsburg had gotten a “big pass” on that, even though it received widespread media attention, criticism from newspaper editorial boards and a statement from Ginsburg that she regretted speaking on presidential politics.
Trump picked up on that as well. “I just don’t know how they cannot recuse themselves for anything having to do with Trump or Trump-related. The right thing to do as the – you know, as a Supreme Court justice, there’s a different standard.”
Judicial ethics experts disagree with that view, even though it is up to individual justices to decide when to bow out.
Even those who have criticized the court for a lack of transparency on recusal decisions and not having a specific ethics policy said Sotomayor’s comments did not qualify.
“The idea being advanced by President Trump – that a justice becomes conflicted if she disagrees with the executive branch’s legal strategy or constitutional theory – is not only wrong but also degrading to the independence of our judiciary,” said Gabe Roth of the organization Fix the Court.
Trump’s comments about Sotomayor and Ginsburg came amid reports that could also provide uncomfortable moments for the court’s public perception. Axios and the New York Times reported that Ginni Thomas regularly sends the White House memos and suggestions about which people to fire – and who should replace them.
Although Trump said it was a “tough ticket” to be invited to his post-acquittal White House event, Thomas was among his cheering supporters. She is a longtime conservative activist, though current and former White House aides say she has been a less frequent presence at the White House recently, and is not particularly influential with the president.
She is part of a gathering of conservative leaders – consisting largely of members of the Conservative Action Project – that Vice President Mike Pence’s team hosts in his office about once a month, as part of its outreach to the conservative movement.
Again, judicial ethics experts have said that the political activities of a spouse should not mean automatic recusal for a judge or justice.
Nor does whether the president was involved in a judge or justice’s appointment.
In private, Trump is generally effusive about the Supreme Court, aides said. He boasts about how “great” his two appointments – Gorsuch and Kavanaugh – are, and he delights in the prospect of getting to fill another vacancy, they said.
The president is always excited when cases that have failed at the lower level move to the high court’s docket, and he is especially gratified when the court rules in a way that benefits him or his administration, they added.
Gorsuch and Kavanaugh have been part of those majorities consistently, not surprisingly.
But once justices are confirmed, they are expected to be independent, and it is rare there would be a conflict with the president that would require them to recuse themselves from a case.
The coming cases on Trump’s financial records – which the president went to court to shield from congressional committees and a New York district attorney – will be closely watched.
In the court’s most noteworthy cases involving presidential powers, the court said President Richard Nixon had to turn over recordings made in the White House, and that President Bill Clinton had to comply with a civil action. Both decisions were unanimous, and joined by each president’s appointees.
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The Washington Post’s Meagan Flynn and Brittany Shammas contributed to this report.