Schumer: I shouldn't have used the words I did, but in no way was I making a threat
Senate Minority Leader Chuck Schumer says his controversial comments involving Supreme Court Justices Gorsuch and Kavanaugh were meant to highlight the political consequences for President Trump and Senate Republicans if they stripped away a woman's right to choose.
Shouting as he addressed a pro-abortion rally yesterday in front of the Supreme Court, while the justices heard an important abortion case, Senate Minority Leader Chuck Schumer, D-N.Y. issued a threat that would be chilling enough if it came from a lone wolf. "I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind and you will pay the price," he said. "You won’t know what hit you if you go forward with these awful decisions."
The threat is far more chilling and irresponsible coming from Schumer, who knows his remarks will reach millions, including angry, unstable people who might interpret them as a call for violence. This from a man who has accused President Trump of being responsible because of his tone for violence by extremists in Charlottesville and elsewhere.
Worst of all, the minority leader's remarks are a deliberate attempt to intimidate at least two Supreme Court justices. That poses a grave threat to the Constitution's separation of powers, particularly coming from someone who has the power to potentially make good on his threats. Think funding cuts for the Court, blocked Supreme Court nominations and a drawn-out Senate trial for any justice House Democrats decide to impeach.
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Schumer's remarks are every bit as threatening to the separation of powers as, say, a judge suggesting he will lock up Congressional leaders if their legislation angers him. This from a senator who repeatedly calls the president a threat to democratic norms and the rule of law.
Even Laurence Tribe, a prominent progressive law professor critical of virtually every conservative-leaning Supreme Court decision, tweeted that Schumer's remarks "were inexcusable," adding that he hoped Sen. Schumer "takes back his implicit threat."
Schumer's remarks were so over the top that Chief Justice John Roberts felt compelled to immediately respond. "[T]hreatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous," he wrote in a letter.
Though Schumer was forced to backtrack a bit on Thursday, his immediate reaction to the letter was to double down and shamelessly lie. His spokesman said “Schumer’s comments were a reference to the political price Senate Republicans will pay for putting these justices on the court" and blamed Roberts for "follow[ing] the right wing’s deliberate misinterpretation of what Sen. Schumer said." Those are some pretty outrageous claims given that Schumer's threat was explicitly addressed to Gorsuch and Kavanaugh.
The minority leader's pique against Roberts' response is all the more remarkable in light of Schumer's grandstanding last month when President Trump suggested that the judge handling Roger Stone's case is biased. Schumer took to the Senate floor to call on the chief justice to rebuke Trump.
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Why is Schumer so enraged at the Court's newest justices that he is driven to make threats he must later deny? It is telling that he didn't mention Justices Thomas and Alito, who – unlike Trump appointees Gorsuch and Kavanaugh – have an actual record in abortion cases and are at least as likely to uphold abortion restrictions. It reveals that what Schumer is really livid about is that Trump's election allowed him to appoint justices in the first place.
More generally, Sen. Schumer and the rest of the Left are apoplectic about the appointment of conservative justices because, for the last half of a century, they have relied on the Supreme Court to enact the many parts of the progressive agenda that lack a popular majority. It is no coincidence that Schumer's remarks were made at a rally about abortion rights, the most sacrosanct plank in the left's judicially enacted platform.
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It should not be surprising that Schumer's threat, while particularly egregious, is but the latest instance in a recent campaign of attempted intimidation of the Supreme Court by Democrats and their allies. One of the more brazen examples came last year, when a group of Democratic senators included a thinly-veiled threat in a legal brief submitted to the justices. The amicus brief, filed in a gun case, accused the Court of being “not well," adding that "Perhaps the Court can heal itself before the public demands it be 'restructured.'"
Unless those doing the intimidating are held to account, this campaign will only accelerate. President Trump apparently agrees, tweeting that Sen. Schumer "must pay a severe price for this!"
Civil or criminal punishment of Schumer is not in the cards. Though his threat may lead to violence against a justice, it does not meet the relevant narrow First Amendment exception for words that incite “imminent lawless action.”
Some have suggested that Schumer be expelled from the Senate. But expulsion would garner few Republican votes, no less the two-thirds majority of senators required.
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Instead, Senate Republicans should seriously consider censure, which requires only a majority. Sen. Josh Hawley, R-Mo., has promised to introduce a censure motion.
At the end of the day, the most effective way to teach Schumer a lesson is for Americans to re-elect President Trump and support his appointment of justices who will create a reliable and principled conservative majority on the Court. That will dramatically demonstrate that trying to intimidate the Supreme Court is a losing strategy.