“This is protected speech. I condemn what Schumer said, but will defend to the death his right to say it, but it is dangerous speech if more people pick up on it,” Napolitano said in response to Schumer’s threatening comments the day before.
Schumer ominously singled out President Trump's two Supreme Court picks on Wednesday saying, "I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind and you will pay the price!"
"You won’t know what hit you if you go forward with these awful decisions," he continued.
When asked if Schumer had made a threat from a legal perspective Napolitano said, “No, I don't think legally it was a threat.”
“I think it was hyperbolic. It was [an] excessive use of words and it was an attempt to intimidate, but it's protected speech,” he continued. “A threat, where you have the present, apparent ability to cause the harm you are threatening is not protected speech, but this is.”
Napolitano said that Schumer’s statement was, however, an “effort to politicize the court, to make them look like they can be intimidated by a mob outside of the courthouse,” which he added “is very, very dangerous to our system.”
“We put in the hands of nine human beings the ability to decide what the laws mean and what the Constitution means and we accept those decisions because they have the moral authority to make them,” Napolitano continued. “When we begin to look at them as politicians in black robes, instead of as the nine, it undermines respect for law and that's the danger from what Sen. Schumer says.”
Napolitano also said that he doesn’t think Schumer “will succeed in intimidating anybody in the court, which is why we give them life tenure and they wear black robes and they operate largely in secrecy and it induces respect.”
“But if more of this happens, they will not have the respect and it will undermine the rule of law,” he added.
Chief Justice John Roberts on Wednesday issued a highly unusual and forceful rebuke to Schumer, also calling his threatening remarks "dangerous" – prompting Schumer's office to slam Roberts and accuse him of bias.
Napolitano said he applauds Roberts for his rebuke.
“I never heard that in all the years I have been studying the Supreme Court,” Napolitano said on Wednesday. “I don't believe a chief justice has ever had to do that because I don't believe the Senate minority or majority leader ever stood in front of the courthouse and said to a justice, ‘You’re going to pay for that.’”
“If he’s got a problem with the president for nominating Justices Gorsuch and Kavanaugh and with the Senate for confirming them he can say whatever he wants, but to say, ‘You’re going it pay for it’ is reprehensible. There’s no place for that dialogue in our society,” he went on to say.
Schumer noted at the rally on Wednesday that an upcoming Supreme Court case, June Medical Services LLC v. Russo, is the first "major" abortion case since President Trump's court picks have been on the bench.
The dispute, dealing with restrictions over who can perform abortions, involves a Louisiana law similar to one in Texas that the court ruled unconstitutional in 2016, before either Trump justice was on the Supreme Court and before conservatives held a 5-4 majority.
Later on Thursday, Schumer insisted he in no way meant to threaten Gorsuch or Kavanaugh, and that McConnell knows this. He claimed he was referring to the political consequences the case could have.
"Now I should not have used the words I used," Schumer said. "They didn't come out the way I intended to.
"I'm from Brooklyn. We speak in strong language."
Fox News’ Gregg Re contributed to this report.