This article was originally published by the Deseret News.
Attacking the rule of law is a perilous venture, more dangerous than any present threat to our national security associated with the judicial handling of President Donald Trump’s executive order, providing for the detention and close vetting of certain individuals from certain countries seeking to come to this country.
In his acclaimed play “A Man for All Seasons,” Robert Bolt portrays the life of Sir Thomas More. Roman Catholics recognize More as the patron saint of lawyers, civil servants and politicians. Bolt captures the importance of the rule of law in this dialogue between More and his would-be son-in-law, Roper, who is urging More to arrest and punish Richard Rich, a villain who has yet to break the law:
Roper: So now you'd give the Devil (Rich) benefit of law!
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I'd cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast — man's laws, not God's — and if you cut them down — and you're just the man to do it — d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.
Chief Justice John Roberts put it this way: “President Ronald Reagan used to speak of the Soviet constitution, and he noted that it purported to grant wonderful rights of all sorts to people. But those rights were empty promises, because that system did not have an independent judiciary to uphold the rule of law and enforce those rights.”
Of late, I have tried to stay out of the political fray. I want to give Trump and members of Congress an opportunity to live up to the mantle of their respective offices. I have admired Trump’s efforts to increase accountability in government and most of his nominees, including Judge Neil Gorsuch, whom I refer to as a lawyer's lawyer and a judge's judge.
I join Gorsuch in being “demoralized” and “disheartened,” however, when the president refers to a distinguished judge on Twitter, a Bush appointee, as a “so-called judge.” The president went even further when he tweeted, “If something happens (a terrorist attack) blame (Judge James Robart) and the court system.” Robart received a unanimous vote of “well-qualified” by fellow lawyers in both parties when he was confirmed by the Senate.
Robart’s decision was affirmed 3-0 by a panel on the 9th Circuit, a panel including Judge Richard Clifton, another George W. Bush appointee to the court, who was also unanimously confirmed. All four judges who have reviewed the case agree that government has failed to offer sufficient evidence, at this stage in the proceedings, of a likely threat to our national security.
I am also disheartened when Sen. Chuck Schumer, the leading Democrat in the Senate, insists that Gorsuch answer substantive questions regarding actual, albeit prior, cases and when he insists that Gorsuch publicly repudiate Trump. Judges who respect the rule of law should never disclose how they would decide a case nor would they publicly disparage a party who may come before their court. Senator Schumer was seeking fodder to attack the President, not information regarding Judge Gorsuch's judicial philosophy.
Attacking the judiciary, as a structural matter, may play well to the base of both parties. Delegitimizing the judiciary may be a popular theme, but it is risky business.
As to the substantive issue on the executive order, Noah Feldman notes, “It is quite possible that the president's executive order detaining and closely vetting certain individuals will be constitutional, unless religious liberty issues become part of the record.” In short, it depends on presenting actual evidence.
As a nonlegal matter, I am no fan of executive orders, regardless of which party is in office. Such orders are often ill-conceived and executed quickly, in an effort to satisfy some particular political faction. They lack the deliberation called for in our system of government, a system in which the three branches of government check and balance one another.
Robart's and the 9th Circuit's decisions were preliminary in nature. In such circumstances, justice and the rule of law outweigh the momentary political pleasure associated with attacking the judiciary, as it hears evidence from all parties.
Imagine if you awakened tomorrow without the rule of law. Sir Thomas More’s devil — chaos and real danger — would prevail in such a world. As Plato taught, “Wise men speak because they have something to say; Fools because they have to say something.”