John Roberts criticized by conservative ex-judge for ‘unforgivable reticence’ about Trump

J Michael Luttig, a conservative former federal judge, has said how he is “disappointed” in his friend John Roberts, the chief justice of the United States, for an “unforgivable reticence” about Donald Trump.

Luttig was long considered a possible supreme court nominee himself. He shepherded Clarence Thomas through his contentious supreme court confirmation hearing in 1991 and was a mentor to the Texas senator Ted Cruz.

But Luttig has emerged as an outspoken Trump critic, testifying to a congressional panel that investigated the January 6 attack on the US Capitol which Trump incited in an effort to overturn the 2020 election.

The former judge has now put both friendship and convention aside to condemn Roberts for failing to take a robust stand against Trump’s attacks on the courts and increasing threats of violence against judges.

“John, my friend, is one of the smartest people I’ve ever met in my life,” Luttig told historians Sidney Blumenthal and Sean Wilentz on their Court of History podcast. “There is nothing that John Roberts is not aware of and, at the top of that list, is self-awareness. He knows everything that’s going on and that’s why I’ve been so disappointed in him.”

Trump has frequently denounced judges whose rulings block his agenda but Roberts has been selective in his pushback. In 2018, after Trump criticised a federal judge who ruled against his asylum policy as an “Obama judge”, Roberts insisted: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.”

Earlier this year, when Trump called for the impeachment of district judge James Boasberg, who had blocked Trump’s administration from deporting alleged Venezuelan gang members, Roberts said “impeachment is not an appropriate response to disagreement concerning a judicial decision”.

In a subsequent Fox News interview, Trump said: “Well, he didn’t mention my name in the statement.” The president also prompted Washington gossip after his speech to a joint session of Congress by shaking Roberts’s hand, patting him on the shoulder and saying: “Thank you again. Thank you again. Won’t forget.”

Critics argue that Roberts’ rulings have enabled Trump’s expansive view of presidential power, creating a tension between his institutionalist stance and his judicial philosophy. Last week he joined the conservative majority in deciding to curb the power of federal judges to impose nationwide rulings impeding his policies.

Luttig, who served on the US court of appeals for the fourth circuit from 1991 to 2006, said on the podcast: “I understand the two issues that plague him. One is the internal workings of the court itself, and I’ll say no more, but you know what I’m talking about.

“And then his unforgivable reticence to speak out directly against the president of the United States of America when he knows, and the rest of the world knows, that this is the president of the United States of America.”

He added: “It was unforgivable, in my view, for the chief to continue to make these broad statements, meaningless statements, and attribute the misconduct to all of us. All of us. Obviously, the chief justice has said you, the Democrats, are every bit as responsible for this as the Republicans. That’s offensive.”

Fewer than half of Americans (47%) now express a favourable opinion of the supreme court, while 51% have an unfavourable view, according to a Pew Research Center survey last year. Wilentz, a history professor at Princeton University, asked Luttig if he thinks Roberts is aware of the damage to both the court’s reputation and the chief justice’s own.

Luttig said Roberts “knows everything there is to know” about the perception, politics and institution of the court. “There is no one smarter than John Roberts as to all of that so, in answer to your question, he knows perfectly well.”

Blumenthal, a former senior adviser to President Bill Clinton and Hillary Clinton, asked if the Roberts cares about historical judgment or only lives in the present. “He has made the decision between the moment and history already, and he cannot recover that decision,” Luttig replied.

Wilentz also raised the issue of Roberts’ responsibility to the federal judiciary at a time of rising political violence. Luttig recalled a recent visit to New York when he was invited to appear on a cable news show with Judge Esther Salas, whose husband was shot and son killed by a disgruntled lawyer five years ago.

Luttig was asked by the programme’s host, Nicolle Wallace, if it would be helpful for Roberts to be sitting with them. “I said, Nicolle, it would not just be helpful, it’s obligatory. It’s a profound obligation. It’s his highest obligation as chief justice of the United States to speak for the safety of the federal judges in this country and I said his problem is that would require condemning the president of the United States.

“But right now, today, the chief justice of the United States is sitting on that fact and I can’t even imagine that the federal judges aren’t sitting there wondering what on earth is going on … I couldn’t look myself in the mirror.”