By Noah Rothman
Thursday, March 05, 2020
Basking in the adoration of an enthusiastic crowd of
progressive activists, Chuck Schumer let himself get carried away.
Addressing a crowd of pro-choice protesters on the steps
of the Supreme Court on Wednesday, the Senate minority leader tried to
intimidate the Justices as they hear arguments on an abortion-related case. “I
want to tell you, Gorsuch. I want to tell you, Kavanaugh,” Schumer bellowed.
“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.”
It was a callous comment bordering on reckless. If
Schumer truly believed, as Democrats regularly profess, that the kind of
militant rhetorical excesses to which Donald Trump is prone are genuinely
dangerous, he might have been more cautious. Indeed, in a rare statement
protesting Schumer’s comments, Supreme Court Justice John Roberts echoed the
admonitions Democrats often deploy against the president. “Statements of this
sort from the highest levels of government are not only inappropriate, they are
dangerous,” Roberts’s statement read. “All members of the Court will continue
to do their job, without fear or favor, from whatever quarter.”
Given the Democratic Party’s oft-stated commitment to
civility, this measured rebuke should have imposed some discipline on the
minority leader. But it did not. In response to Roberts, Schumer’s office
issued a gratingly dishonest statement insisting that the minority leader was
only referring to “the political price Senate Republicans will pay” for
confirming Trump’s Supreme Court picks. Indeed, the real villain here is
Justice Roberts, who backed “the right wing’s deliberate misinterpretation of
what Sen. Schumer said.” And all “while remaining silent when President Trump
attacked Justices Sotomayor and Ginsberg last week.” This episode shows, in
Schumer’s estimation, that Roberts “does not just call balls and strikes.”
Given the galling duplicity of this statement, honest
observers can only conclude that Schumer’s office is counting on the ignorance
of his audience and the complicity of the press to avoid the scrutiny it
deserves. What exactly was it that Trump had said about Justices Ruth Bader
Ginsberg and Sonia Sotomayor that merits a slap on the wrist? The president had
called on both justices to “recuse themselves on all Trump or Trump-related
matters” because they had made political comments about the president in public
forums. Trump expanded on these comments during an official visit to India: “I
always thought, frankly, that Justice Ginsburg should do it,” he said, “because
she went wild during the campaign when I was running.” These comments surely
infringe upon the bounds of political propriety that should govern how a
president talks about representatives of competing branches of the federal
government, but they do not even approach the kind of incitement Schumer
encouraged.
Rather than rush to fact-check Schumer’s comments, some
in the press dedicated themselves to supporting it on whatever grounds they
could. “Sounded familiar,” remarked Washington
Post Supreme Court reporter Robert Barnes. He noted that Schumer’s comments
sounded eerily familiar to those Justice Bret Kavanaugh made during his
confirmation hearings. “You sowed the wind for decades to come,” the Justice
told the members of Congress. “I fear that the whole country will reap the
whirlwind.” The only similarity between this and Schumer’s statement here seems
to be the word “whirlwind.” The sentiments these two figures express bear no
other commonalities. Nevertheless, Slate columnist and court-watcher Dahlia
Lithwick agreed with Barnes’s attempt to exculpate Schumer, adding that “it
beggars belief” that Roberts is doing anything other than backing up Donald
Trump at the expense of his institution.
The notion that Roberts is not an institutionalist but a
pro-Trump sleeper agent in robes is nothing short of deranged. This isn’t the
first time Roberts has gotten off the bench, so to speak, in defense of the
judicial branch’s independence. The last public figure who merited one of his
infrequent reprimands was, in fact, Donald Trump. “We do not have Obama judges
or Trump judges, Bush judges or Clinton judges,” Roberts wrote in 2018 in
response to Trump, who had criticized a judge’s ruling against the
administration’s asylum policy by implying that the decision was entirely
political. The “independent judiciary is something we should all be thankful
for,” the Chief Justice concluded.
Schumer’s remarks are so thoroughly indefensible that the
more forthright members of the liberal commentariat could not hold their
tongues. “Having watched the Schumer clip a few times, it really was out of
line!” MSNBC host Chris Hayes averred. “Not just for norms reasons (though I
think those matter) but also because idle threats are dumb and expose
impotence.” The Washington Post’s
Ruth Marcus was similarly reproachful. “Bashing judges,” she wrote, “is
dangerous, disrespectful, and corrosive to the independence of the judiciary.”
These are noble efforts to police Schumer’s rhetoric. And
though they were few and far between, they seem to have had the desired effect.
On Thursday, the minority leader offered a qualified apology for his remarks.
“I should not have used the words I used yesterday,” he said, adding: “I’m from
Brooklyn. We speak in strong language.” If that’s an excuse, it’s one Democrats
don’t believe should apply to people from Queens.
Schumer’s apology is welcome, but it doesn’t detract from
the revealing aspects of this episode. What was Schumer’s endgame here? How did
his office define the conditions for victory in this feud with the Supreme
Court Chief Justice? To even pose the question is to illustrate the absurdity
of the fight to which the senator committed himself. Schumer did not have a
grand plan when he criticized the Court’s two most recent conservative
appointees. He read the room and gave the crowd what it wanted: the
uncompromising, vaguely menacing rhetoric of total political warfare. Schumer
dug himself deeper into a hole he excavated on the steps of the Supreme Court
because American political culture punishes contrition. These are all traits
evinced by Donald Trump, of course, but the president did not create the
incentives to which he often responds so recklessly.
Trump-skeptical commentators and activists on the right
have long warned that the coarsening of American culture is a reciprocal
phenomenon. It doesn’t begin and end in one political camp. The left has long
mocked that meager faction of the American right for its paucity, but it seems
the ranks of the Democratic Party’s civility police are just as thin.
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