The Scorpion and the Frog, a.k.a. Donald Trump and Leonard
Leo
Trump’s
savaging of his former judicial nominations guru shows his lawless hand.
Jun 03, 2025
Trump
meets with Leo and others, 2017
Leonard Leo, the bête noire of liberals
who curated Trump’s first-term judicial appointments, including his three
Supreme Court justices, has gone from Trump's shortlist to his shit list. As is
his wont, Trump turned on his loyal servant with particular savagery, calling
him a “sleazebag” who had rendered bad advice on a series of judicial
nominations.
Leo responded with comparative good grace, along with a
pointed, if diplomatic, defense of his influential work: "I'm very
grateful for President Trump transforming the Federal Courts…[T]he Federal
Judiciary is better than it's ever been in modern history, and that will be
President Trump's most important legacy."
The genesis of the fallout speaks volumes about Trump's
view of the role of the federal judiciary, and of his own inner circle.
Trump's ire was sparked by the Court of International
Trade’s recent opinion striking down his broad tariffs because they unlawfully
usurped Congress’s powers and relied on supposed “emergency” powers under the
International Emergency Economic Powers Act (IEEPA) that the Act does not
provide.
This legal failing is a cross-cutting theme of Trump's
indiscriminate power grabs. Similar to a number of modern would-be
authoritarians, Trump has repeatedly tried to steamroll basic legislative
authority by characterizing everyday political issues as emergencies requiring
a strongman’s intervention.
The opinion was a unanimous per curiam (i.e.,
no single author was identified) by three members of the Court of International
Trade: a Reagan appointee, an Obama appointee, and a first-term Trump
appointee. Moreover, the Trump appointee, Timothy Reif, is—as Trump appointees
go—unusually well qualified, having previously served as general counsel in the
Office of the U.S. Trade Representative (USTR) in the Executive Office of the
President and then senior counsellor to the U.S. Trade Representative.
The panel, including Reif, held that the IEEPA—the text of
which doesn't even contain the word emergency—could not support
Trump’s outlandish and all-too-familiar claims that the sky is falling. At the
same time, the court noted the possibility of statutory sources of authority
other than the one Trump invoked.
In response to the administration’s predictable motion for
emergency relief, the Federal Circuit—the Court of Appeals for the specialized
Court of International Trade—has imposed an administrative stay that tells us
nothing about whether it will affirm the lower court on the merits.
Trump's temper tantrum is ironic, if not absurd, given
Leonard Leo’s record as the administration’s judicial nominee whisperer. By any
measure—on the left or the right, and whether provoking aversion or elation—Leo
has compiled a phenomenally successful record in the service of Trump and the
conservative judicial movement in general.
He follows in the footsteps of advisors to other Republican
administrations since Reagan, who have adopted a single-minded focus on
judicial appointees and have dramatically transformed the makeup of the federal
judiciary. In Leo’s case, that includes Trump's three Supreme Court nominees:
Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
Conservative Trump supporters have generally taken those
appointees—which have established an über-majority conservative
Court likely to last for a generation or more—as back-to-back-to-back home
runs.
Just for starters, all three of them voted to
overrule Roe v. Wade, probably the number one goal of judicial
conservatives for a generation, and a (dubious) achievement that for many years
looked impossible. In terms of the personal bounty for Trump, all joined the
outlandish 2024 immunity opinion that continues to provide him comfort on a
regular basis—for example, just last week, with the pardon for Paul Walczak in
the wake of a $1 million solicited donation by Walczak’s mother that fits the
criminal elements of bribery to a T.
The larger lesson in Trump's excoriation of Leo is what it
shows about Trump’s expectations of the purpose of screening his nominees.
Leo has served up a long series of candidates who talk the
talk about conservative jurisprudence, including the newfangled articles of
faith like robust Second Amendment interpretation, solicitude for
religious-based intolerance, and the Supreme Court’s less-than-fully-coherent
history-and-tradition test.
That doesn't cut it for Trump. One important opinion
against him—plainly on the basis of well-established legal principles that any
judicial conservative should embrace—and Leo gets moved to the other list, with
a heavy dose of Trump’s obloquy for good measure. For Trump, there's only one
test of judicial qualifications: ruling for Trump, whatever the law provides.
Leo failed in his presumed duty to find absolute Trump toadies, or to quietly
inculcate the potential toadies he did find.
Leo joins a very long list of former insiders whom Trump
has abruptly cast out and vilified. Central advisers such as Mike Pence, Chris
Christie, Anthony Scaramucci, Kayleigh McEnany, Mick Mulvaney, John Bolton, and
many others have all tasted Trump’s poison, some for reasons that are minor or
even mysterious. The fact is, there's no rhyme or reason to Trump's spurning of
former close associates. It rather just seems to be a way of demonstrating
domination and superiority to any advisor, however valuable.
Trump is like the scorpion in the fable of the scorpion and
the frog. Not able to swim to cross the river, the scorpion asks a frog for a
ride on his back. Knowing the scorpion’s dangerous sting, the frog hesitates:
“How do I know you won’t sting me?” The scorpion replies, “Because if I sting
you, we’ll both drown.” So, the frog agrees to ferry the scorpion across the
river. Halfway there, the scorpion stings the frog, who with his dying words
asks, “Why did you do that? Now we’re both going to die.”
“I couldn’t help it,” the scorpion replies. “It’s in my
nature.”
Trump is a legal ignoramus indifferent to the Constitution
and the role of law. His only interest is domination. He turns on those who
served him faithfully because it’s in his nature.
The general agenda of Trump 2.0—outlined by the long
blueprint of Project 2025—is to put in place a series of measures that grossly,
and unconstitutionally, aggrandize Trump's personal power, rejecting any
vestiges of restraint and lawfulness that stymied him the first time around.
Transposed to the federal judiciary, that means a careful
search for judges like Aileen Cannon or Matt Kacsmaryk who—not to put too fine
a point on it—are utterly in the tank for the president who appointed them and
who could yet elevate them to higher judicial service.
So far, the Trump 2.0 judicial nomination process has
little to show for itself; the Senate has confirmed none of his 11 federal
court nominees this year.
Leo’s casting out thus portends a series of nominees
carefully chosen to cross fingers behind their backs when they swear, as the
law requires, to “administer justice without respect to persons.” Call it the
attempted Cannonization of the federal judiciary—and, to the
extent Trump can secure Senate confirmations, one more sharp departure from the
rule of law.
