ArcaMax

WASHINGTON -- So much for judges calling balls and strikes.

President Trump tweeted the other day about the call by retired Supreme Court Justice John Paul Stevens to repeal the Second Amendment. (A dumb idea, by the way: won't happen, isn't necessary, wouldn't work).

This was Trump's take: "THE SECOND AMENDMENT WILL NEVER BE REPEALED! As much as Democrats would like to see this happen, and despite the words yesterday of former Supreme Court Justice Stevens, NO WAY. We need more Republicans in 2018 and must ALWAYS hold the Supreme Court!"

Think about that last sentence, which received way less attention, and condemnation, than it deserved: "We ... must ALWAYS hold the Supreme Court," as if it were the presidency or a house of Congress, a prize awarded to the electoral victors.

As always, Trump manages to combine ignorance and cunning. He is ignorant of -- ignorant, really, to the point of allergic to -- the importance of the judiciary as an independent institution and the operation of the rule of law. Yet he is also maliciously canny; this is a man who knows that nothing motivates his base more than the prospect of courts packed with conservative judges.

"When I got in, we had over 100 federal judges that weren't appointed," Trump observed the day after the Stevens tweet, somewhere in the middle of a speech on infrastructure. "It was like a big beautiful present to all of us. Why the hell did he leave that?" Um, because Republicans, led by Senate Majority Leader Mitch McConnell, did their best to stall and block nominations?

For Trump, judges are just another set of crude political actors, on Team Trump or off it. When they rule against his political or financial interests, they are to be demeaned ("Mexican" judge, "so-called judge") and bullied ("Just cannot believe a judge would put our country in such peril," Trump tweeted after a ruling halting his travel ban. "If something happens blame him and court system.")

But the Supreme Court, his tweet notwithstanding, is not "held" by Republicans -- it is occupied by judges, who are nominated by Republican or Democratic presidents and confirmed by a Senate that has a Republican or Democratic majority. Unlikely that Trump was aware of this, but Stevens -- who turned out to be a stalwart liberal -- was nominated by a Republican president, Gerald Ford.

As a general matter, of course: Judges selected by Republicans, especially in the modern environment of hyper-attentiveness to the role of the judiciary, are going to tend to have a different judicial philosophy than judges selected by Democratic presidents -- more wary of expanding constitutional rights or inserting courts into political and social disputes.

That is why Chief Justice John Roberts' famous umpire analogy, depicting judges as neutral arbiters dispassionately using their Very Big Brains to reason through legal problems, was so frustrating, unsatisfying, and, ultimately, misleading. "I believe that there are right answers," Roberts said, "and judges, if they work hard enough, are likely to come up with them."

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