WASHINGTON — Judge Neil Gorsuch, President Trump’s nominee for the Supreme Court, privately expressed dismay Wednesday over Trump’s increasingly aggressive attacks on the judiciary, calling the president’s criticism of independent judges “demoralizing’’ and “disheartening.’’
The remarks by Gorsuch, chosen by Trump last week to serve on the nation’s highest court, came as the president lashed out at the federal appellate judges who are considering a challenge to his executive order banning travel from seven predominantly Muslim countries. The president called their judicial proceedings “disgraceful’’ and described the courts as “so political.’’
Those remarks followed Trump’s weekend Twitter outburst in which he derided a Seattle circuit court judge who blocked his travel ban as a “so-called judge’’ whose “ridiculous’’ ruling would be overturned.
Gorsuch expressed his disappointment with Trump’s comments about the judiciary in a private conversation with Senator Richard Blumenthal of Connecticut as he paid courtesy calls on Capitol Hill to build support for his confirmation. An account of the discussion was confirmed by a White House adviser working to advance the Gorsuch confirmation, who spoke on condition of anonymity because he was not authorized to comment.
The spectacle of a Supreme Court nominee breaking so starkly with the president who named him underscored the unusual nature of Trump’s public feud with the judiciary. Speaking to a group of sheriffs and police chiefs Wednesday, the president said the appellate judges had failed to grasp concepts even “a bad high school student would understand.’’
“This is highly unusual,’’ said Michael W. McConnell, a former federal judge who directs the Constitutional Law Center at Stanford University. “Mr. Trump is shredding longstanding norms of etiquette and interbranch comity.’’
Presidents have traditionally tried to refrain from even appearing to intervene in court cases that concern them or their policies, or from impugning the motives and qualifications of jurists charged with deciding them, according to judges and legal experts from across the political spectrum.
Trump’s rhetorical battle with the judiciary may also end up harming his cause in a case that may end up before the Supreme Court, by potentially stiffening the resolve of judges who feel their independence is under attack.
McConnell called Trump’s comments “extremely self-defeating and self-destructive’’ because of their potential to sway judges to rule against Trump.
“Judges who hear criticism of this sort are not going to be inclined to knuckle under; it’s going to stiffen their spines to be even more independent,’’ said McConnell, who was nominated to his judgeship by President George W. Bush.
Jeffrey Rosen, president of the National Constitution Center, a nonprofit organization in Philadelphia devoted to explaining the Constitution, said there was a rich history of presidents strongly criticizing judges on matters of law.
“But those criticisms were based on constitutional disagreements about the rulings, and it’s hard to think of a president who has challenged the motives of specific judges by name repeatedly, especially before a case is decided, or used the same kind of invective as Mr. Trump has toward the court,’’ Rosen said.
Yet Trump, who as president has the power to nominate members of the federal judiciary, appears bent instead on portraying independent judges who hold the fate of his travel ban in their hands as partisans who refuse to give him the power to which he is entitled to protect the nation.
“I don’t ever want to call a court biased, so I won’t call it biased,’’ Trump said Wednesday. “But courts seem to be so political, and it would be so great for our justice system if they would be able to read a statement and do what’s right.’’
Trump, who opened his remarks to law enforcement officers reciting the passage of the US code that gives the president the power to restrict immigration whenever he deems the influx of foreigners detrimental to the country, said he had watched “in amazement’’ Tuesday night as a three-judge federal appeals panel heard arguments on his executive order and the limits of presidential power in cases of national security.
“I listened to a bunch of stuff last night on television that was disgraceful,’’ Trump said. “I think it’s sad. I think it’s a sad day. I think our security is at risk today.’’
His comments came the morning after a lively, roughly hourlong hearing — the audio of which was carried live on national television — during which three judges on the Ninth US Circuit Court of Appeals expressed skepticism about the arguments of a Justice Department lawyer defending Trump’s order.
Judge James L. Robart of US District Court in Seattle blocked the travel ban Friday, and the appeals court is considering whether to uphold that action.
Trump took aim at one of the judges without specifying which, saying, “I will not comment on the statements made by, certainly one judge.’’
The panel was made up of Judge William C. Canby Jr., appointed by President Jimmy Carter; Judge Richard R. Clifton, named by Bush; and Michelle T. Friedland, nominated by President Barack Obama.
“If these judges wanted to, in my opinion, help the court in terms of respect for the court, they’d do what they should be doing,’’ Trump said. “It’s so sad.’’
By contrast, he lavished praise on Judge Nathaniel M. Gorton, a federal district judge in Boston who last week ruled that the travel ban could stay in place. “Right on — they were perfect,’’ Trump said of Gorton’s comments.
White House Press Secretary Sean Spicer said Wednesday that the president is expressing his frustration with a process that he believes should be subject to common sense.
‘‘He respects the judiciary,’’ Spicer said. ‘‘It’s hard for him and for a lot of people to understand how something so clear in the law can be so misinterpreted.’’
He added that Trump, who has a long history of punching back against his opponents both political and personal, is also speaking directly to his supporters who are looking for him to aggressively deliver on his campaign promises.
‘‘He likes to talk to his supporters, to be blunt,’’ Spicer added. ‘‘Part of it is that people wonder — who helped elect him — what is he doing to enact his agenda.’’
Trump’s handling of the incident recalled his attacks during the presidential campaign on an American judge of Mexican descent, Gonzalo Curiel, who Trump claimed could not fairly adjudicate a fraud case against now-defunct Trump University because of his ethnic heritage.
‘‘In Trump’s world there’s a precedent where he believes a judge of Mexican heritage can’t fairly judge his case,’’ said longtime Republican strategist Rick Wilson, a frequent Trump critic. ‘‘It’s part of the overall pattern of the Trump White House: They want to always be on the attack. It’s not enough to say their ideas are wrong, their policies are wrong; you’ve got to nuke them.’’
A coalition of Democratic members of the House introduced a resolution criticizing Trump’s attacks, and Laura Brill, a California lawyer and former clerk to Supreme Court Justice Ruth Bader Ginsburg, sent the administration’s top lawyers a letter on behalf of nearly 150 lawyers who practice in the federal courts denouncing Trump’s comments.
‘‘Lawyers across the political spectrum believe that the president’s personal attacks on individual judges and on the judicial branch are improper and destructive,’’ Brill said in a statement. ‘‘Because judges face ethical constraints in their ability to respond directly, the letter calls on the president to retract and end such personal attacks.’’
Not everyone was deeply offended by Trump’s words. Paul Cassell, a University of Utah law professor who served as a federal district judge from 2002 to 2007 and was nominated by President George W. Bush, said he believes Trump ‘‘stepped over the line’’ in his criticism of Robart.
‘‘But I would characterize it as a misdemeanor traffic ticket, not a felony,’’ Cassell said. ‘‘Judges have thick-enough skins that they are used to being criticized. We live in a time in which strong language seems to be the order of the day.’’
‘‘The president certainly has a right to criticize the court,’’ Cassell said.
He said he thought then-President Barack Obama went further in his 2010 State of the Union criticism of the Supreme Court, which had just decided the Citizens United v. Federal Election Commission case. Cassell said Obama used ‘‘more elegant language,’’ but also contends that Obama’s analysis of the case was off-base.
Besides, he added, ‘‘The president can tweet all he wants, but the final decision will be made by the judiciary.’’