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CONTEMPT OF COURTS? PRESIDENT TRUMP’S TRANSFORMATION OF THE JUDICIARY Brendan Williams* Faced with a letter from the American Bar Association (ABA) assessing him as “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice,” Lawrence VanDyke, nominated by President Trump to serve on the Ninth Circuit Court of Appeals, cried during an October 2019 confirmation hearing before the Senate Judiciary Committee.1 Republican senators dutifully attacked the ABA as liberally-biased.2 In a Wall Street Journal column, a defender of VanDyke assailed what he called a “smear campaign” and wrote that “[t]he ABA’s aggressive politicization is especially frustrating for someone like me, an active member of the ABA[.]”3 VanDyke was confirmed anyway.4 Contrary to Republican protestations, the ABA has deemed 97% of President Trump’s nominees to be “well qualified” or “qualified.”5 Indeed, in the most polarizing judicial nomination of the Trump Administration, Justice Brett Kavanaugh, Kavanaugh’s defenders pointed to the ABA having rated him “well qualified” despite the association having once, in 2006, dropped his rating to “qualified” due to concerns about his temperament.6 *Attorney Brendan Williams is the author of over 30 law review articles, predominantly on civil rights and health care issues. A former Washington Supreme Court judicial clerk, Brendan is a New Hampshire long-term care advocate. This article is dedicated to his father Wayne Williams, admitted to the Washington bar in 1970. 1Hannah Knowles, Trump Judicial Nominee Cries over Scathing Letter from the American Bar Association, WASH. POST (Oct. 30, 2015). 2Id. 3Adam J. White, Another Smear Campaign from the American Bar Association, WALL ST. J., (Oct. 30, 2019.) 4Matthew Daly, Trump Pick for Nevada Seat on Appeals Court Confirmed Despite Cortez Masto, Rosen Protest, RENO GAZETTE J. (Dec. 11, 2019) (“Among those opposing VanDyke were Nevada Democratic Sens. Jacky Rosen and Catherine Cortez Masto, who said that despite serving four years as Nevada's solicitor general, VanDyke's qualifications are inadequate and his ties to Nevada ‘minimal.’’). 5Knowles, supra note 1. 6Adam Liptak, Bar Association Questioned Kavanaugh’s Temperament and Honesty in 2006, N.Y. TIMES (Oct. 2, 2018). 2 DENVER LAW REVIEW FORUM [28-Oct-20 Senator Lindsey Graham (R., S.C.)—Kavanaugh’s most vociferous defender—even used the ABA’s rating to defend Kavanaugh against charges of sexual misconduct: “If you lived a good life, people would recognize it, like the American Bar Association has—the gold standard . He’s the nicest person—the ABA.”7 For those progressives—or advocates of an impartial judiciary— troubled by the direction of President Trump’s judicial nominations, the concern is hardly the accommodating ABA, it is a combination of Democratic haplessness and the effectiveness of conservative, interchangeable organizations such as the Judicial Crisis Network (JCN) and the Federalist Society. Given President Trump’s landmark success in filling judicial vacancies,8 it is ironic that no recent president has been more contemptuous in his regard for the judiciary—even getting into a war of words with Chief Justice John Roberts about whether there are “Obama judges” and “Trump judges.”9 In one fit of pique, President Trump suggested that Supreme Court Justices Sonia Sotomayor and Ruth Bader Ginsburg recuse themselves from cases involving his administration.10 Roberts offered no defense of the two women justices, but, much to Trumps’ delight, Roberts did express public 7Avi Selk, The American Bar Association Had Concerns about Kavanaugh 12 Years Ago. Republicans Dismissed Those, Too., WASH. POST (Sept. 28, 2018). The irony of Graham’s reliance upon the ABA rating was that, following President Trump’s first Supreme Court appointment, Justice Neil Gorsuch (whose top ABA rating Republicans heavily relied upon), it was reported in March 2017 that “[t]he Trump administration has sent the American Bar Association into exile, ending the group’s semiofficial role in evaluating candidates for the federal bench.” Adam Liptak, White House Ends Bar Association’s Role in Vetting Judges, N.Y. TIMES (Mar. 31, 2017). 8He began in office with a tremendous advantage. See, e.g., Gretchen Frazee, How Trump is Reshaping One of the Country’s Most Liberal Courts, PBS NEWS HOUR (Aug. 19, 2019), https://www.pbs.org/newshour/politics/planned-parenthood-funding-battle-highlights- trump-focus-on-courts (“When Trump took office, there were more than 100 judicial vacancies across the country — twice as many as President Barack Obama inherited from President George W. Bush. The large number of vacancies was due in part to Senate Republicans’ blocking Obama’s nominees.” 9Mark Sherman, Roberts, Trump Spar in Extraordinary Scrap over Judges, ASSOCIATED PRESS (Nov. 21, 2018), https://apnews.com/c4b34f9639e141069c08cf1e3deb6b84. Roberts enigmatically defended judicial independence in a year-end message in December 2019 that some took as an implied rebuke to Trump. See Adam Liptak, Impeachment Trial Looming, Chief Justice Reflects on Judicial Independence, N.Y. TIMES (Dec. 31, 2019). 10See Meagan Flynn & Brittany Shammas, Trump Slams Sotomayor and Ginsburg, Says They Should Recuse Themselves from ‘Trump-related’ Cases, WASH. POST (Feb. 25, 2020). 28-Oct-2020] DENVER LAW REVIEW FORUM 3 umbrage when Trump’s own appointees were criticized by Senate Minority Leader Chuck Schumer (D., N.Y.).11 Trump has regularly railed against the Ninth Circuit Court of Appeals, in particular.12 When discussing immigration policy, he has stated that “to be honest with you, you have to get rid of judges.”13 During his 2016 presidential campaign, facing litigation over his “Trump University” sham,14 Trump had used racial terms in attacking the Hispanic judge presiding over the case, even falsely accusing him of being born in Mexico. Trump’s attack on the judge prompted a rebuttal from then-U.S. House Speaker Paul Ryan (R., Wis.) for what he characterized as “the 11Robert Barnes & Colby Itkowitz, Roberts Rebukes Schumer for Saying Justices will ‘Pay the Price’ for a Vote Against Abortion Rights, WASH. POST Mar. 4, 2020. 12See Gretchen Frazee, supra note 8. Yet he has been quite successful in packing it with his own judges. See Susannah Luthi, How Trump is Filling the Liberal 9th Circuit with Conservatives, POLITICO (Dec. 22, 2019, 3:54 PM), https://www.politico.com/news/2019/12/22/trump-judges-9th-circuit-appeals-court-088833 (“Democratic-appointed judges now hold a three-seat majority, compared with 11 at the start of Trump's presidency.”). 13Steve Benen, On Immigration, Trump Says He Wants to ‘Get Rid of Judges’, MSNBC (Apr. 3, 2019, 1:15 PM). Reportedly, according to the account of one anonymous Administration insider’s book, Trump gave serious thought to reducing the number of federal judges. Michael Warren and Holmes Lybrand, ‘Anonymous’ Book Offers Eye-Popping Insider Details, CNN (Nov. 17, 2019, 9:35 PM). As CNN reported: “Can we just get rid of the judges? Let's get rid of the [f***ing] judges,” Trump once said, according to the author. “There shouldn't be any at all, really.” Trump apparently went on to ask his legal team to write up a draft bill to send to Congress that would reduce the number of federal judges. “Staff ignored the outburst and the wacky request,” the anonymous official writes. Id. 14See, e.g., Josh Hafner, Judge Finalizes $25 Million Trump University Settlement for Students of 'Sham University’, USA TODAY (Apr. 10, 2018) (“Trump University was not an actual university but a for-profit seminar series, and former students waged a years-long battle claiming the course misled them with claims of teaching real estate success.”). 4 DENVER LAW REVIEW FORUM [28-Oct-20 textbook definition of a racist comment. I think that should be absolutely disavowed. It’s absolutely unacceptable."15 Prior to becoming president, Trump had a long history of legal entanglements—beginning with a housing discrimination case brought against Trump and his father by the Nixon Administration.16 It is clear Trump, who has asserted he is unaccountable to legal processes while president,17 views the judiciary through a contemptuous lens of partisanship and self-interest.18 That contempt seems reflected in controversial criminal pardons he has issued. Trump has, for example, pardoned former Arizona sheriff Joe Arpaio, who was convicted of contempt of court for illegally continuing “detaining people based solely on suspicion of their immigration status” after being ordered to stop.19 He pardoned right-wing conspiracy theorist Dinesh D’Souza, who had pled 15Tom Kertscher, Donald Trump's Racial Comments about Hispanic judge in Trump University Case, POLITIFACT (June 8, 2016), https://www.politifact.com/article/2016/jun/08/donald-trumps-racial-comments-about- judge-trump-un/. 16See Jonathan Mahler & Steve Eder, ‘No Vacancies’ for Blacks: How Donald Trump Got His Start, and Was First Accused of Bias, N.Y. TIMES (Aug. 27, 2016) (“Rather than quietly trying to settle . he turned the lawsuit into a protracted battle, complete with angry denials, character assassination, charges that the government was trying to force him to rent to “welfare recipients” and a $100 million countersuit accusing the Justice Department of defamation.”). 17See Ann E. Marimow & Jonathan O'Connell, In Court Hearing, Trump Lawyer Argues a Sitting President Would be Immune from Prosecution Even if He Were to Shoot Someone, WASH. POST (Oct. 23, 2019) (“President Trump’s private attorney said . that the president could not be investigated or prosecuted as long as he is in the White House, even for shooting someone in the middle of Fifth Avenue.”). Following his Senate acquittal on two House articles of impeachment – one of which the 2012 Republican presidential nominee, Utah Senator Mitt Romney, voted for – an uncontrite Trump labeled the process “all bullshit.” Caitlyn Oprysko, ‘It was all bulls---’: Liberated Trump Lets Loose in Victory Speech after Acquittal, POLITICO (Feb.
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