Is Trump Getting Too Personal With the Judicial Branch?

It had become a familiar government family dynamic: There were the legislative and executive branches, complaining that the other was either overreaching or not doing its job.

The third branch of government, the judiciary, metaphorically rolled its eyes and stepped in to resolve disputes – even setting public policy – when the other two branches could not manage to do so on their own. The judiciary was the adult in the room, staying out of the personal feuds and power struggles that kept the White House and Congress in an ongoing war.

But with the election of Donald Trump – and the ensuing reaction by Democrats – the robed ones have been drawn, if unwillingly, into the nasty street fight that increasingly characterizes the relationship between the branch that writes the laws and the one that executes them.

President Trump, like his predecessor, is in a turf war with members of Congress over executive orders, especially a recent one indefinitely suspending the admission of Syrian refugees and barring most residents of seven majority-Muslim nations from entering the country.

When a federal judge in Washington state temporarily halted key aspects of the ban, Trump lashed out on Twitter, calling the jurist a "so-called judge" who had undermined his administration's authority.

In another tweet, Trump appeared to be pre-emptively blaming the judge – James Robart – should the nation be hit by a terrorist attack, saying, "because the ban was lifted by a judge, many very bad and dangerous people may be pouring into our country." And on Wednesday, he upped the ante, tweeting, "If the U.S. does not win this case as it so obviously should, we can never have the security and safety to which we are entitled. Politics!"

Also on Wednesday, Trump suggested courts – established as an independent arbiter and interpreter of the law – were being driven by the very sort of politics the other two branches openly engage in daily.

"I don't ever want to call a court biased, so I won't call it biased. And we haven't had a decision yet," Trump said in a speech to law enforcement officers that followed arguments over his travel ban before a panel of the 9th U.S. Circuit Court of Appeals. "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."

Jurists have avoided responding in kind to Trump's remarks, but Trump critics say the courts still have been put on the defensive, testing the strength of the federal balance of powers.

"President Trump has a right to disagree with the courts, but not to use this personal invective and insults," says Sen. Richard Blumenthal, a Connecticut Democrat and his state's former attorney general. After a get-to-know-you meeting Wednesday with Trump's Supreme Court nominee, Neil Gorsuch, Blumenthal told reporters that Gorsuch called the president's criticism of the judiciary "disheartening" and "demoralizing." The description reportedly came in reference to Trump's "so-called judge" comment about Robart.

It's not the first time a president has personally gone after a judge. In 1996, former President Bill Clinton was openly critical of a decision by a federal judge he appointed, Harold Baer Jr., regarding the suppression of evidence in a Manhattan drug case.

The White House, under fire for appearing soft on crime, even suggested that Clinton might ask Baer to step down. It later backed off that possibility, noting the independence of the judicial branch.

Baer, meanwhile, reversed his decision. But in an unusual move, four federal appellate judges chastised Clinton and then-GOP presidential nominee Bob Dole for their "attacks" on Baer, saying they threatened "to weaken the constitutional structure of this nation."

President Barack Obama, too, had his clashes with the judiciary, using a State of the Union address to call out the Supreme Court for its Citizens United decision easing campaign finance restrictions.

And high court justices themselves have dipped into politics, either by criticizing the court's own opinions – as Justice Samuel Alito did with the same-sex marriage ruling – or by weighing in, very unusually, on a presidential contender, as Ruth Bader Ginsburg did in criticizing Trump.

Still, feuds involving a commander in chief and a jurist on the bench generally have not reached the level of questioning the very integrity of the judicial branch or its members.

Ernest Young, a professor at Duke University Law School, says federal judges' lifetime tenure means they should be ready for protests and criticism, but he adds that tone is important.

"The judiciary can take it. That's why we give them life tenure," says Young, who clerked for Supreme Court Justice David Souter in the mid-1990s.

But "you'd like it to be more substantive and respectful in its tone," he adds. "I would take the president's Twitter account away if I could."