Are courts always right? Trump's legal battles spark Senate fight

Sen. Josh Hawley is challenging Democrats to think about whether federal judges always get it right as he seeks to push back on attacks that President Trump is undermining the “rule of law.”

Mr. Hawley, Missouri Republican, ticked off a list of now-discredited Supreme Court rulings at a Senate hearing on Wednesday.

“When we have a decision that is absolutely morally abhorrent — Korematsu, Dred Scott — we can go down the line, should officials who disagree with a morally abhorrent decision just blindly follow it?” he said. “Is the United States of America better off if our public officials in the face of grievous moral wrong say and do nothing?”

The challenge was sparked by Sen. Richard Durbin, Illinois Democrat, who was questioning Dean Sauer, the president’s nominee to be solicitor general. That’s the top litigator in the administration.

Amid growing Democratic worries that Mr. Trump will defy court rulings, Mr. Durbin asked Mr. Sauer if such resistance was ever warranted. Mr. Sauer pointed to the 1944 Korematsu decision that upheld the constitutionality of Japanese internment camps, and to the 1857 Dred Scott decision that said slaves were not citizens.

Mr. Durbin said those decisions were still followed.

“As bad as it was, that court order was followed for years, was it not?” he told Mr. Sauer.

Mr. Hawley jumped in.

“It sounded to me like my friend Sen. Durbin was defending the Korematsu decision, which I think is one of the worst and most abhorrent decisions in the history of the United States,” he said.

The conversation took place under the specter of a Trump social media post amid a string of early court losses.

“He who saves his Country does not violate any Law,” Mr. Trump wrote on Feb. 15.

Combined with accusations in some court cases that Mr. Trump hasn’t turned back on federal spending that courts had ordered, the comments left Trump critics fuming about defiance of judges.

Senate Minority Leader Charles E. Schumer, New York Democrat, said Mr. Trump was leading a “scorched earth assault on the rule of law.”

The Hawley-Durbin exchange caught the eye of Josh Blackman, a professor at South Texas College of Law, who said he teaches students to avoid answering “always” questions like Mr. Durbin’s.

“It is impossible to predict all of the circumstances that may arise. What if a federal judge ordered the president to immediately reinstate the chairman of the joint chief of staffs, and refused to stay the ruling? Would that order have to be immediately complied with? It is better to hedge. And I think the nominees at the hearing hedged appropriately,” Mr. Blackman wrote in a blog this week for the Volokh Conspiracy.

A spokesperson for Mr. Durbin said you can disagree with a court’s decision but still respect judicial orders.

“Like Senator Durbin articulated, you can disagree with a court’s decision. You have the right to criticize it, to appeal it, or to resign. But nobody — not even Donald Trump — has the right to outright disobey a court order they don’t like,” the spokesperson said.

“More broadly, the idea of permitting any elected official to decide for themselves the legitimacy of court orders would gut our nearly 250-year system of checks and balances,” the spokesperson added. “Senator Durbin is hopeful that Republican senators will speak up on something as basic as this principle of constitutional law. Because if we abandon this, then we’ve abandoned our democracy.”

• Stephen Dinan contributed to this story.