Look to the Judges

While Trump despicably denies his duty to uphold the Constitution, let's take strength from judges who oppose his regime's illegal actions

“I urge you to keep going, keep doing what is right for our country,” Justice Ketanji Brown Jackson told a gathering of judges. (Photo by Win McNamee via Getty Images)

The words were not a surprise, but they still were stunning. The occupant of the White House, a man who gave a solemn oath to preserve, protect and defend the Constitution, was directly asked yesterday on NBC’s Meet the Press if he was obliged to uphold the Constitution.

His answer: “I don’t know.”

Translation: No, I don’t have to uphold the Constitution, not when it doesn’t serve my interests.

There’s a lot more to say about this appalling desecration of the most basic duty demanded by our founding fathers of the president. We are seeing this contempt play out over and over with Donald Trump’s refusal to follow the rule of law and the responsibility to ensure that people in America—citizens and non-citizens—are provided due process.

But rather than dig through Trump and his regime’s hostile attacks on our system of justice, which surely would cause our blood to boil, I recommend that we look to the judges dedicated to the rule of law and democracy.

In recent weeks, I have been uplifted by a variety of judges who not only have pushed back against the regime’s illegal actions, but have summarized their belief in and commitment to America and our judicial system. I think you’ll find their words not only heartening, but a reminder of why we need to overcome this hateful chapter with all our heart.

Supreme Court Justice Ketanji Brown Jackson is one of the judges who felt compelled to speak out in the last week. At a conference for judges held in Puerto Rico, she addressed the increasingly dangerous rhetoric (without specifically invoking the name of Trump), why this is unacceptable and what’s required of judges.

“Across the nation, judges are facing increased threats of not only physical violence, but also professional retaliation just for doing our jobs. And the attacks are not random,” she said. “They seem designed to intimidate  those of us who serve in this critical capacity."

And, “A society in which judges are routinely made to fear for their own safety or their own livelihood due to their decisions is one that has substantially departed from the norms of behavior that govern a democratic system. Attacks on judicial independence is how countries that are not free, not fair, and not rule of law-oriented, operate.”

And what’s required to ensure a free and fair society? “Having an independent judiciary—defined as judges who are indifferent to improper pressure and determine and decide each case according to the rule of law—is one of the key ingredients,” Jackson said.

The justice urged the audience to demonstrate “raw courage” in doing their jobs, especially amid the hostile attacks and even calls for impeachment when Republicans oppose their rulings. “I urge you to keep going, keep doing what is right for our country, and I do believe that history will vindicate your service,” she said.

Judge Royce Lamberth, serving on Washington, D.C.’s district court and appointed by Ronald Reagan, is one of those judges Justice Jackson urged to be brave. Last week he ruled that the Trump administration must restore $12 million in funding taken from Radio Free Europe.

“In interviews, podcasts, and op-eds, people from both inside and outside government have variously accused the courts— myself included—of fomenting a constitutional crisis, usurping the Article II powers of the Presidency, undercutting the popular will, or dictating how Executive agencies can and should be run,” Lamberth wrote in his ruling. He called that “a fundamental misunderstanding” of the role of the federal judiciary and of the Constitution itself.

By issuing his ruling, he concluded, “I am humbly fulfilling my small part in this very constitutional paradigm—a framework that has propelled the United States to heights of greatness, liberty and prosperity unparalleled in the history of the world for nearly 250 years. If our nation is to thrive for another 250 years, each co-equal branch of government must be willing to courageously exert the authority entrusted to it by our Founders.”

Judge James Boasberg has been wrestling with the issue of separation of powers and the Trump regime’s defiance of his order to return migrants from the El Salvador prison. In recent weeks, he’s insisted there’s “probable cause” to hold the government in contempt for its deportations based on the Alien Enemies Act. (In the last several days, Judge Fernando Rodriguez Jr. from the Southern District of Texas ruled that the invocation of the Alien Enemies Act to deport migrants is illegal, causing a mad Trump to spew, “If this is so, our Country, as we know it, is finished!”)

Here’s how Judge Boasberg described what’s at stake: “If a party chooses to disobey the order—rather than wait for it to be reversed through the judicial process—such disobedience is punishable as contempt, notwithstanding any later-revealed deficiencies in the order." He added, “The Constitution does not tolerate willful disobedience of judicial orders—especially by officials of a coordinate branch who have sworn an oath to uphold it.”

Trump is continuing to refuse to facilitate the return of Kilmar Abrego Garcia from El Salvador, as ordered by the Supreme Court last month, but claims he’s not defying the court. In his interview yesterday with Kristen Welker on NBC’s Meet the Press, he deceitfully passed off the responsibility to Attorney General Pam Bondi.

“I'm not involved in the legality or the illegality,” he lied. “I'm relying on the attorney general of the United States, Pam Bondi.”

Judge Beryl Howell roundly rejected last week Trump’s efforts to intimidate lawyers and law firms, noting that the Constitution provides critical protections. “Government officials, including the President, may not ‘subject…individuals to ‘retaliatory actions’ after the fact for having engaged in protected speech,’” she wrote in a 100-page opinion involving Trump’s executive order against law firm Perkins Coie.

“In a cringe-worthy twist on the theatrical phrase ‘Let’s kill all the lawyers,’” she wrote, referencing Shakespeare’s Henry VI, Trump’s executive order “takes the approach of ‘Let’s kill the lawyers I don’t like,’ sending the clear message: lawyers must stick to the party line, or else.”

She was not having it. “Using the powers of the federal government to target lawyers for their representation of clients and avowed progressive employment policies in an overt attempt to suppress and punish certain viewpoints, however, is contrary to the Constitution, which requires that the government respond to dissenting or unpopular speech or ideas with ‘tolerance, not coercion,’” she said.

That’s worth repeating. Dissent should be treated with “tolerance, not coercion.” That, my friends, is the American way. And it should be the guiding principle for any law firm that were to still consider capitulating to Trump’s assault on free speech.

Judge Howell had one more thing to say on behalf of law firms, lawyers and others that fight back. “If the founding history of this country is any guide,” she said, “those who stood up in court to vindicate constitutional rights and, by so doing, served to promote the rule of law, will be the models lauded when this period of American history is written.”

Yes, indeed.

It’s worth noting, I think, the response on Friday from Perkins Coie, which refused to be intimidated by Trump and garnered the backing of more than 500 other law firms. “This ruling affirms core constitutional freedoms all Americans hold dear, including free speech, due process and the right to select counsel without the fear of retribution,” the firm said in a statement. “We are pleased with this decision and are immensely grateful to those who spoke up in support of our positions.”

Getting through this period—poisoned by a hostile regime’s dark plot to force authoritarian, anti-constitutional rule upon us—will depend on lawyers and law firms and other courageous individuals refusing to capitulate. It will require the continued determination of judges opposing illegal actions and voicing the principles that define American democracy and justice.

And it will take the commitment of everyday Americans—by the millions—who take strength from the essential values and principles that have long guided our nation, who reject authoritarian rule and who believe that it’s worth fighting to secure a democratic future.

Our purpose remains clear.

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