Just three weeks in, the Trump administration has tested the limits of executive power, violated the separation of powers and shaken the very roots of the Constitution.
A particular theme of President Trump’s first days in office has been contempt for the judicial branch as a check on his authority: He criticised individual judges, preemptively blamed them for all future terrorist attacks and ridiculed the court system as “disgraceful.”
Given the administration’s disdain for the judiciary, any nominee to the Supreme Court, particularly by this president, must be able to demonstrate independence from this president. The bar is always high to achieve a seat on the Supreme Court, but in these unusual times — when there is unprecedented stress on our system of checks and balances — the bar is even higher for Judge Neil M. Gorsuch to demonstrate independence.
In order to clear it, he will have to convince 60 of my colleagues that he will not be influenced by politics, parties or the president. The judiciary is the last and most important check on an overreaching president with little respect for the rule of law.
The only way to demonstrate the independence necessary is for Gorsuch to answer specific questions about the judiciary and his judicial philosophy.
Of course, a judicial nominee should not prejudge how he would rule in a specific case to come before the court, but that does not preclude the nominee from answering basic and specific questions about judicial philosophy or how he would have decided past cases. Doing so would make the nominee no more biased than any of the justices who now sit on the court and issued opinions in those cases.
When I met with Gorsuch on February 7, I sought to ascertain his potential to be an independent check on the president. The judge was clearly very smart, articulate and polite, with superb judicial demeanour. But over the course of an hour, he refused to answer even the most rudimentary questions.
I asked him whether an unambiguous Muslim ban would be constitutional. He refused to answer. I asked him if he agreed with conservative lawyers who say the president has abused executive power. He refused to answer. I asked him whether he thought the president’s comments on voter fraud would undermine our democracy. He refused to answer. I asked him about landmark cases like Citizens United and Bush v. Gore. He refused to answer. Since he claims to be an originalist, I asked him about his view of what the framers intended with the Emoluments Clause in our Constitution.
He refused to answer any of these questions. He told me he couldn’t give me his view of any case, past or present, or any constitutional principle, because it might bias him. This blanket excuse frustrates any examination of what kind of judge the nominee will be. As the conservative icon Chief Justice William H. Rehnquist wrote, “Proof that a justice’s mind at the time he joined the court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.”
Without any hints about his philosophy or examples of how he might have ruled on landmark cases, the only way that Gorsuch was able to demonstrate his independence as a jurist was by asserting it himself. He could give no evidence of it in his record, and therefore I could have no assurance of it in the future.
As I sat with Gorsuch, a disconcerting feeling came over me that I had been through this before — and I soon realised I had, with Judge John G. Roberts Jr. He was similarly charming, polished and erudite. Like Neil Gorsuch, he played the part of a model jurist. And just like Gorsuch, he asserted his independence, claiming to be a judge who simply called “balls and strikes,” unbiased by both ideology and politics.
When Judge Roberts became Justice Roberts, we learnt that we had been duped by an activist judge. The Roberts court systematically and almost immediately shifted to the right, violating longstanding precedent with its rulings in Citizens United and in Shelby v. Holder, which gutted the Voting Rights Act.
Before Justice Scalia died, the court was on the precipice of violating precedent again with Friedrichs v. California Teachers Association, which would have eviscerated unions. In each instance, there was an attempt to tilt the scales of justice in favour of big business or right-leaning interests.
Rather than calling balls and strikes, Roberts was a 10th player, shifting the power structure toward the privileged and away from the average American.
‘Fool me twice, shame on me!’
The overarching lesson of Roberts can be summed up in a familiar phrase: Fool me once, shame on them; fool me twice, shame on me.
Gorsuch’s behind-closed-doors admission that he felt “disheartened” by President Trump’s attacks on judges could well be akin to Roberts’s “balls and strikes.” Gorsuch told it to me in private; when Senator Richard Blumenthal of Connecticut and I asked him to say it in public, he refused. Clearly he wanted this to be seen as a marker of his independence, because his handlers immediately told us, “You can tell this to the press.”
A truly independent judge would have the fortitude to condemn the president’s remarks, not just express disapproval, and to do it publicly. The White House’s assertion that Gorsuch’s private remarks were not aimed at Trump only raises concerns about his independence.
My fellow senators should know that Gorsuch was eerily similar to Judge Roberts. He played the part but was entirely unwilling to engage in a substantive discussion that — crucially — could have given me confidence in his independence as a judge.
Gorsuch must be far more specific in his answers to straightforward questions about his judicial philosophy and opinions on previous cases. He owes it to the American people to provide an inkling of what kind of justice he would be.
— New York Times News Service
Charles E. Schumer is the US Senate minority leader.