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 criticized 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 Judge Gorsuch
to answer specific questions about the judiciary and his judicial
philosophy. Of course, a judicial nominee should not prejudge how he or
she 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 Judge Gorsuch on Feb. 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 demeanor. But over
the course of an hour, he refused to answer even the most rudimentary
questions.
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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 Judge 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 Judge Gorsuch, a disconcerting feeling came over me that I
had been through this before — and I soon realized 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
Neil 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 learned 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 favor of big business or
right-leaning interests. Rather than calling balls and strikes, Chief
Justice Roberts was a 10th player, shifting the power structure toward
the privileged and away from the average American.
The
overarching lesson of Chief Justice Roberts can be summed up in a
familiar phrase: Fool me once, shame on them; fool me twice, shame on
me.
Judge
Gorsuch’s behind-closed-doors admission that he felt “disheartened” by
President Trump’s attacks on judges could well be akin to Judge
Roberts’s “balls and strikes.” Judge 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
Judge Gorsuch’s private remarks were not aimed at Mr. Trump only raises
concerns about his independence.
My
fellow senators should know that Judge 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.
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.
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