On the surface, one of the best moments of the week came when Donald Trump’s own nominee for the Supreme Court, Neil Gorsuch, said he found Trump’s ham-handed attempt to intimidate the judiciary into going along with his travel ban “disheartening” and “demoralizing.” Even better, the White House twisted itself into a pretzel trying to deny Gorsuch actually used those terms despite multiple sources corroborating Gorsuch’s statements. It looked like we had arrived at a 25th Amendment moment a lot sooner than anyone could have expected.
Well, it turns out that while Gorsuch was willing to speak out against Trump, he wasn’t willing to publicly do so himself. That doesn’t sit well with Senate Minority Leader Chuck Schumer. In an op-ed that will run in Sunday’s edition of The New York Times, Schumer writes that Gorsuch’s unwillingness to publicly condemn Trump’s bullying is one of many reasons that he isn’t convinced that Gorsuch will be a truly independent justice at a time when we truly need judges who will be independent.
Schumer sat down with Gorsuch for the first time on Tuesday. Schumer recalled that Gorsuch told him privately the same thing he’d told Senator Richard Blumenthal of Connecticut–that he was “disheartened” by Trump attacking the judges who blocked his travel ban. However, Schumer said, when he and Blumenthal offered Gorsuch the chance to say the same thing in public, Gorsuch turned it down. Schumer wasn’t impressed.
“Clearly he (Gorsuch) 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.”
Frankly, that is truly disheartening. It can be argued that Gorsuch’s refusal to respond publicly was guided by ethical constraints on how a judge can respond in such situations. But it’s hard to believe that anyone would have a problem with a judge up for Supreme Court consideration publicly responding to what can only be described as a blatant attack on one of the cornerstones of our democracy. Seen in that light, Gorsuch’s decision to punt his response doesn’t speak well for his independence.
That wasn’t the only reason Schumer was disappointed in what he saw and heard from Gorsuch. According to Schumer, Gorsuch was unwilling to respond to “rudimentary questions” about issues such as a ban on Muslim immigration, Trump’s abuse of power, Citizens United, and the Emoluments Clause. While Gorsuch contended he was unwilling to risk biasing himself, Schumer recalled that the late Chief Justice William Rehnquist–like Gorsuch, a staunch conservative–believed that it is very unusual for a prospective justice to remain silent about his views on constitutional matters.
Schumer recalled that John Roberts gave similar responses when he was up for confirmation as Chief Justice in 2005. In a conversation with Schumer, Roberts described himself as merely a “balls and strikes” judge. In truth, Schumer contends, the Roberts Court has acted as “a 10th player” in favor of the privileged few. So you’ll have to pardon Schumer for being concerned that Gorsuch was merely a Roberts clone.
Schumer hinted that Gorsuch hadn’t done enough to prove he was independent in a chat with Rachel Maddow on Thursday. Watch here.
With this in mind, Schumer had a warning for both Gorsuch and his Republican colleagues–a filibuster can’t be ruled out unless Gorsuch proves he can truly be an independent justice.
“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.”
Considering that Trump has encouraged (read: told) the Senate Republicans to go “nuclear” in the event Schumer musters enough support for a filibuster, Schumer is effectively telling Mitch McConnell and friends, “Bring it on.”
But in this case, it’s warranted. At first blush, Gorsuch’s seeming willingness to speak out against the man who nominated him ended any defensible reason for a filibuster. Had I been in the Senate, though, he still would have had a hard sell to make in order to get my support in an up-or-down vote.
But if Gorsuch doesn’t think it’s appropriate to speak for himself on this attempt to bludgeon and gaslight the judiciary into submission, I can only agree with Schumer. If Gorsuch wants an up-or-down-vote for a lifetime seat on the Supreme Court, he needs to prove that he will stand up to Trump, not bow down to him.
(featured image courtesy Glenn Fawcett, part of public domain)
