Here’s some free advice for Chuck Schumer, the Senate Democratic leader:
Shut. The. Front. Door. Now.
As most readers will know by now, on Wednesday, the senator addressed a reproductive-rights rally in front of the Supreme Court and solemnly spoke to the two newest justices. “I want to tell you, Gorsuch; I want to tell you, Kavanaugh: You have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.”
Yesterday morning, Schumer tried to walk back that crude threat: “I should not have used the words I used yesterday. They didn’t come out the way I intended them to. I’m from Brooklyn. We speak in strong language. I shouldn’t have used the words I did, but in no way was I making a threat. I never—never—would do such a thing.”
Does that make what he said any better? To my mind, no. For one thing, I have friends and family in Brooklyn who manage to make themselves well understood in a variety of situations without sounding at all like understudies in a road-company production of Guys and Dolls. Beyond that, Schumer’s threat was Trumpian—a judge who displeases me will pay a price. His retraction was equally Trumpian: I didn’t threaten anyone. It would be okay if I had because in Brooklyn we threaten people all the time, but those aren’t threats, and anyway I would never, ever do what I just did.
Let’s consider all the ways that Schumer has, by popping off on this occasion, taken the current political situation—already nearly catastrophic—and made it worse. First, as a general matter, threatening judges—even seeming to threaten judges—is a dreadful thing to do, no matter whether it’s done by Donald Trump, Roger Stone, or Chuck Schumer. As the United States struggles to retain the last shreds of the rule of law, the way to respond to Trump’s threats is not—repeat, is not—to deploy threatening language from the other side.
Second, the threat itself was, as we used to say where I grew up, kind of pitiful. He sounds like the deposed, disarmed King Lear, vowing to his ungrateful daughters that “I will have such revenges on you both that all the world shall—I will do such things—what they are yet I know not, but they shall be the terrors of the earth.” If Schumer had any power over the world these two jurists live in, they wouldn’t be on the Court at all. Mitch McConnell and Donald Trump contemptuously brushed aside Schumer’s opposition to both appointments, and didn’t suffer for it politically. Now that Neil Gorsuch and Brett Kavanaugh are installed with life tenure, does Schumer expect them to quake at his displeasure? Such a threat is not thuggery; it is impotence posing as thuggery, not only improper, but embarrassing.
Third, Schumer’s remarks have now allowed Trump himself to pose as the defender of judicial independence. His campaign and presidency have been a sustained and devastatingly effective assault on the very notion of law, courts, and judges being anything but the instruments of his will. Just last week he was demanding that two justices of the court recuse themselves, because one of them had questioned the litigation tactics of the Office of the Solicitor General. Now, thanks to Schumer, he has tweeted the following hypocritical piety: “This is a direct & dangerous threat to the U.S. Supreme Court by Schumer. If a Republican did this, he or she would be arrested, or impeached. Serious action MUST be taken NOW!”
Trump’s acolytes, such as Representative Steve Scalise and Senator Ben Sasse, are also now able to pose as supporters of independent judges. Any attempt at the correct narrative—that the courts are being taken over by an authoritarian regime—can now be dismissed with a sarcastic reference to Schumer. Schumer stepped blithely into the mother of all false equivalencies, and it is going to be impossible to walk that back.
Consider the response Schumer’s remarks elicited from Chief Justice John Roberts:
This morning, Senator Schumer spoke at a rally in front of the Supreme Court while a case was being argued inside. Senator Schumer referred to two Members of the Court by name and said he wanted to tell them that “You have released the whirlwind, and you will pay the price. You will not know what hit you if you go forward with these awful decisions.” Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All Members of the Court will continue to do their job, without fear or favor, from whatever quarter.
Roberts has many shortcomings, but he has tried to prevent Trump from spreading his characteristic ordure on the Supreme Court. He issued an unprecedented rebuke to the president, without naming him, last year after Trump called a federal district judge who had displeased him an “Obama judge.” Roberts reiterated his implied rebuke in his year-end state of the judiciary report, where he likened attacks on the court to the mob violence that had temporarily disabled John Jay, one of the authors of The Federalist Papers.
Don’t come to the front of my Court and threaten its members, Roberts seems to be saying. Fair enough; but this statement too was a serious misstep, damaging to Roberts himself and to the Court. That’s because just last week Trump had gone after Ruth Bader Ginsburg and Sonia Sotomayor by name. While he did not directly threaten them, he did call into question their legitimacy as judges, which can be as corrosive as a threat—and which came from someone with more power, and a more volatile popular following, than Schumer. If Roberts chose to defend Gorsuch and Kavanaugh, then he should have done the same for the two liberals, in a statement that said, “Figures in both parties have gone way over the edge and need to cut it out.” He chose not to, for whatever reason—and that failure undermines his attempts to position himself above the fray.
The final malign effect of Schumer’s blunder is the immediate gearing up of the moral-relativity machine on the Democratic and progressive side of the judicial war. Already I have seen tweets praising Schumer because Trump has done worse. But moral relativism is rarely worthy of the name. In political situations, the right question to ask is almost never “Is my side worse than Donald Trump?” Far more often, it is “Is my side living up to the beliefs we profess?”
The fact is that America’s court system is in terrible trouble. The Supreme Court, and the lower courts, have been annexed by the Republican Party as a principal political plank and an important engine of partisan triumph. Even if Trump leaves office in January, the soiled legitimacy of the judicial branch is going to be an urgent and intractable problem. The parties are going to have to come to terms with it at some point, and will have to do so by negotiation and legislation. The nature of the system has to change, and the struggle is to make the changes positive and not destructive. That struggle will not be made easier by ineffectual attempts to imitate Trump.