In Defense of the Courts

Martha Minow, left, and Robert Post, right.

Came across this must read today and just felt I had to share it. The deans of Harvard and Yale law schools put their heads together and wrote an editorial in opposition to Trump’s anti-democratic attacks on the judicial branch. The following appeared February 13, 1017 on Law.Com.

“The deans of Yale Law School and Harvard Law School have joined the growing chorus of lawyers publicly condemning President Donald Trump’s attacks on the judiciary.

In a blistering op-ed in The Boston Globe on Friday, Harvard’s Martha Minow and Yale’s Robert Post wrote that Trump’s Twitter-delivered insults against the federal judges who stayed his controversial travel ban risk making the president “an enemy of the law and the Constitution.”

 “By questioning the legitimacy and authority of judges, Trump seems perilously close to characterizing the law as simply one more enemy to be smashed into submission,” the deans wrote. “At risk are the legal practices and protections that guard our freedom and our safety from the mob violence that destroyed democracies in the 1930s.”

Trump called U.S. District Court Judge James Robart, who initially stayed the travel ban, a “so-called judge” on Twitter. He then went after the appellate panel for leaving Robart’s order in place, calling their ruling “disgraceful,” among other comments. Last year, Trump accused the judge hearing a lawsuit over his Trump University of bias due to the jurist’s Mexican heritage.

Post said in an interview Monday that he is generally reluctant to weigh in on matters outside the scope of the law school, but Trump’s hostility to the courts demanded a response. “I felt that what’s going on here was really an attack on the rule of law,” Post said. “It’s the mission of the school to preserve and sustain the rule of law, so it came under my obligation as a steward of the institution.”

Post and Minow aren’t the only lawyers weighing in. The legal profession has been vocal in its criticism of Trump’s repeated disparagement of judges.

Last week, American Bar Association president Linda Klein lambasted Trump’s attack on Robart in a fiery speech delivered during the organization’s midyear meeting in Miami. “There are no ‘so-called’ judges in America,” Klein said.

“There are simply judges, fair and impartial. And we must keep it that way.”

Even Trump’s own U.S. Supreme Court nominee, Neil Gorsuch, said the president’s tweets about the judges’ handling the travel ban challenge were “disheartening” and “demoralizing.” The Trump administration later asserted that Gorsuch wasn’t specifically referring to the ban.

Post said he and Minow were careful to avoid commenting on the constitutionality of Trump’s travel ban. “I’m speaking out on attacking judges personally,” he said. “I’m speaking out when [Trump] said, ‘Any high school student could have decided this. You don’t need judges. You don’t need professionals. You don’t need legal expertise because it’s all politics.’”

Minow echoed Post’s sentiments in a statement issued through a law school spokeswoman. “Dean Post and I were writing as scholars, lawyers and teachers, and our roles leading two of the nation’s top law schools compelled us to speak out,” she wrote.

Both Minow and Post are in their final semesters leading their respective law schools. Each has said they will step down as dean and return to teaching next academic year.

The last time the two deans paired up on an op-ed was in 2014, in the wake of several high-profile killings of black men by white police. “As we mourn the deaths of Eric Garner and Michael Brown, let us remember that the real grand jury is all of us,” they wrote. “We must constantly ask how we can narrow the gaping distance between our legal ideals and the practices we countenance.”

Similarly, the deans called for everyone to stand up against Trump’s attacks on the courts in their latest op-ed.

“If we are to keep the rule of law, it must not be a partisan question; it must not be the concern simply of lawyers. We must all defend it, passionately and whole-heartedly,” they wrote. “Without the rule of law, we may have a “so-called” president who in fact has become a tyrant. Fundamentally, this moment is not about Trump. It is about all of us.”

Contact Karen Sloan at ksloan@alm.com. On Twitter: @KarenSloanNLJ”

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