President Donald Trump’s pick for the country’s top legal representative at the Supreme Court declined to rule out ignoring court orders, explaining that there could be “extreme cases.”
At his hearing before the Senate on Wednesday, prospective solicitor general D. John Sauer stuttered at first when Democrat Sen. Dick Durbin asked him whether he believed that an elected official should ever defy a federal court order.
“I don’t want to speak to hypotheticals, especially not hypotheticals that might come before me in an official capacity if I were confirmed by the Senate,” Sauer finally responded. “Generally, if there’s a direct court order that binds a federal or state official, they should follow it.”
Before being nominated for the Department of Justice role, Sauer was Trump’s personal attorney. He won big on Trump’s behalf at the Supreme Court, convincing the conservative majority to extend broad legal immunity for Trump in his actions as president.
Durbin was not satisfied with Sauer’s evasive answer: “Why do you say ‘generally’? Give me an exception that would be acceptable to you.”
A stammering Sauer said, “I suppose one could imagine hypotheticals in extreme cases, like the Korematsu decision, you know, the Dred Scott decision.”
The two Supreme Court cases named by Sauer are likely the two most widely reviled. Korematsu ruled that the threat of espionage during World War II outweighed the constitutional rights of Japanese Americans, while Dred Scott upheld slavery in the 19th century.
But as Durbin pointed out: “As bad as it was, that court order [in Korematsu] was followed for years, was it not?”
“I just wonder whether some historians might think we’d be better off if it hadn’t been followed,” Sauer said.
As Durbin’s time ran out, Sauer added, “I’ve represented President Trump for the better part of two years and I just think that that’s not a plausible scenario.”
Already, little over a month into his presidency, Trump has faced legal pushback to his administration’s actions, including court orders blocking his attempt to end birthright citizenship with an executive order.
Two weeks ago, the president sparked concern from his critics when he made a post ostensibly quoting a Hollywood version of Napoleon Bonaparte: “He who saves his Country does not violate any Law.”
