As Thanksgiving approaches, what am I thankful for? The American judiciary. Judges do not get the credit they deserve as guardians of our democracy. Too often we – whether liberals or conservatives – are exercised over one decision or another that did not go the way we wanted. I plead guilty myself, having once, many years ago, written a facile book berating judges for various abuses.
There are certainly examples of judicial misconduct that cry out for censure, but on the whole our judiciary is among the most effective, honest and independent in the world. That is something we take for granted. We should not. It is a near-miracle when seen from a historical perspective. How many countries are there in the world where a judge could rule against a president and have his ruling so widely respected that it does not even occur to anyone that the president could disobey it?
Those thoughts are prompted by Friday's ruling by federal district Judge Timothy J. Kelly in the case of CNN v. Trump. CNN (where, full disclosure, I'm a global affairs analyst) had sued the president for revoking the "hard pass" granting access to the White House grounds to its correspondent Jim Acosta. Trump had gotten furious at Acosta for posing challenging questions in a White House press conference, and this was his punishment. The White House even released a doctored videotape to suggest that Acosta had assaulted an intern who had tried to take his microphone away.
Both actions – punishing a reporter for asking tough questions and justifying that action with a lie – are hallmarks of an authoritarian regime. Trump bears a close resemblance in personality to countless dictators throughout history, from Mussolini to Putin. Like them, he construes critical news coverage as treason by "the enemy of the people." And if this were 1930s Italy or contemporary Russia, Acosta would not be on the job in the White House. He might not even be alive. But this is America, and we remain a nation of laws.
Thus Kelly issued a temporary restraining order forcing the White House to give Acosta back his hard pass. Kelly held that CNN stood a good chance of ultimately prevailing in its claim that the White House had violated Acosta's due-process rights under the Fifth Amendment. The ruling was all the more impressive given that Kelly was appointed to the bench by Trump himself after having worked for Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa). No one could doubt Kelly's Republican credentials, but he put his loyalty to the Constitution above his loyalty to the president.
Kelly's example of upholding the rule of law against the most lawless administration in our history has been widely emulated. Think of all the judges, Republican and Democratic appointees alike, who stopped the implementation of Trump's "Muslim ban" early in 2017. Yes, Trump's travel order was ultimately approved, 5 to 4, by a closely divided Supreme Court. The court's decision in Trump v. Hawaii was not its proudest hour, but at least the ban had been revised twice since its issuance to make its religious discrimination marginally less offensive. (North Korea and Venezuela had been added as window-dressing to the list of majority-Muslim nations targeted.)
The administration has lost many other cases that have never reached the high court. Lower-court judges, for example, have stopped Trump's attempts to end legal protections for "dreamers" who were brought to this country illegally when they were young. They have ended the administration's policy of family separation, forcing the release of children who had been detained apart from their families after entering the United States illegally. They have repeatedly supported special counsel Robert S. Mueller III's authority to pursue his probe of the president and his aides, most recently upholding his indictment of a Russian troll farm. They have ruled against the Justice Department's attempts to dismiss a case brought by Democrats charging Trump with violating the constitution's emoluments clause by accepting payments from foreign governments that book his hotel rooms. And they have struck down the administration's attempts to change federal rules to make it easier to fire federal workers.
Of course, we are not in the clear yet. Further cases loom, including a lawsuit challenging the constitutionality of Matthew G. Whitaker's outrageous appointment as acting attorney general despite his lack of Senate confirmation. The most momentous cases of all could pit Mueller against Trump if the president challenges the special counsel's actions or tries to shut down his investigation. There is certainly cause for concern that a politicized Supreme Court may again rule for the administration, as it did in the travel ban case. But on the whole, the judiciary has acquitted itself admirably. This is how the checks and balances of the Constitution are supposed to operate.
So, thank you, to the men and women in black, for protecting our republic. Help yourself to an extra slice of pie on Thursday, Your Honor. You've earned it.
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