There is saying the quiet part out loud, and then there’s what Trump lawyer Alina Habba just did.
Addressing the Supreme Court’s looming 14th Amendment decisions on whether Donald Trump can be disqualified from state ballots for engaging in insurrection, Habba decided it would be a good time to remind people of just how much Trump has done for Justice Brett M. Kavanaugh.
“I think it should be a slam dunk in the Supreme Court; I have faith in them,” Habba said on Fox News. “You know, people like Kavanaugh who the president fought for, who the president went through hell to get into place, he’ll step up.”
Habba quickly added the disclaimer that the justices “will step up not because they’re pro-Trump, but because they’re pro-law, because they’re pro-fairness.” And she has since done some cleanup work, trying to assure audiences that she wasn’t suggesting that Kavanaugh owed Trump loyalty.
Habba: I think it should be a slam dunk in the supreme court. I have faith in them. You know, people like Kavanaugh, who the president fought for, who the president went through hell to get into place. He’ll step up. pic.twitter.com/gQo1h55t6N
— Acyn (@Acyn) January 5, 2024
Two points.
One is that, despite Habba’s cleanup effort, she was clearly pointing in the direction of Kavanaugh (and potentially others) being beholden to Trump; there is no other reason to invoke the supposed favors Trump did for Kavanaugh. This adds to a volume of evidence that indicates that Trump does indeed expect loyalty from judges and justices — along with plenty of others in positions where that shouldn’t be a consideration.
The second point is that this is potentially counterproductive.
Trump’s record on such issues is unambiguous. He has made clear he expects judges to toe his line, and he looks for loyalty in all the wrong places — from officials who are supposed to be insulated from politics. That starts with but is hardly limited to an FBI director whose investigation threatened Trump, James B. Comey. “I need loyalty, I expect loyalty,” Comey testified that Trump told him in 2017 before Trump fired him.
The Washington Post has reported that, also in 2017, Trump considered pulling the nomination of now-Justice Neil M. Gorsuch because of a perceived lack of loyalty. Gorsuch had in a confirmation interview with a Democratic senator expressed displeasure with Trump’s attacks on judges, calling them “disheartening” and “demoralizing.”
As The Post’s Ashley Parker, Josh Dawsey and Robert Barnes reported:
During his 2016 campaign, Trump repeatedly suggested that judges he nominated would rule in predictable ways, including on issues such as Roe v. Wade. “If it’s my judges, you know how they’re gonna decide,” he assured evangelicals at one point.
Trump in 2022 also bristled after the Supreme Court declined to help him shield his tax returns from the House Ways and Means Committee.
“Many Republican Judges go out of their way to show they are beyond reproach, & will come down hard on people before them in order to prove they cannot be ‘bought’ or in any way show favor to those who appointed them,” Trump said on Truth Social, adding: “As soon as they get appointed, they go ‘ROGUE!’”
Trump suggested that this was a contrast to judges appointed by Democrats, who were more apt to toe the party’s line.
But that last point also shows how Habba’s comment could be ill-advised, even beyond the ethics of it.
Whatever you think of Trump’s expressed sentiment about relative party loyalty, it’s true that judges are fiercely protective of the perception that they are independent. Yes, judges and even Supreme Court justices often rule in predictable ways that align with the party that appointed them. But crucial to the legitimacy of the court is the idea that they aren’t just political operatives doing the bidding of their allies.
Habba’s comments — and Trump’s past comments — basically set the narrative that Trump is working the justices. And any favorable decision for Trump could be viewed as bowing to that pressure. Whether it affects Kavanaugh’s thought process or not, it puts him in a box.
While the conventional wisdom is that the court would side with Trump in the 14th Amendment case, not all legal scholars take that for granted. Trump is reportedly somewhat worried. And the Supreme Court has gone against Trump on several key issues.
Kavanaugh in his 2018 confirmation hearings was asked about this very subject. Sen. Cory Booker (D-N.J.) cited Trump’s demand for loyalty from Comey, and he asked Kavanaugh to address the “credible suspicion” that Trump might have chosen Kavanaugh believing the justice would protect him.
Kavanaugh responded that “my only loyalty is to the Constitution, and I’ve made that clear and I’m an independent judge.”
Trump has since expressed displeasure with Kavanaugh when Kavanaugh has demonstrated a measure of independence in some key cases. Trump said in an interview for a 2021 book that Kavanaugh “hasn’t had the courage you need to be a great justice.”
Trump added: “Where would he be without me? I saved his life. He wouldn’t even be in a law firm. Who would have had him? Nobody. Totally disgraced. Only I saved him.”
It seems like no accident that Trump’s lawyer has now invoked basically the same argument, while attaching it to a crucial looming decision.
Whether it’s smart to keep barking up that tree is another matter.