Ensuring Judicial Independence Will Require Senate Independence

February 22, 2017
Guest Post

*This piece originally appeared on The Hill

by Sen. Patrick Leahy

The late Chief Justice William Rehnquist once described the independent judiciary as “one of the crown jewels of our system of government.” That is because the judiciary, insulated by life tenure from elections, can provide a necessary check on the other two branches of government and uphold the constitutional rights of all Americans.

Now the independent federal judiciary is under attack by a president who seems intent on precipitating a constitutional crisis. President Trump’s attacks on a sitting federal judge reveal the misguided notion that judges owe some allegiance to the president who appointed them or to a political party. Yet these attacks also underscore exactly why the independent judiciary is such a crucial part of our system of government.

Judges do not consider tweets, they consider the facts and the law. And based on the facts in front of them, federal judges have found President Trump’s immigration order is very likely discriminatory and unconstitutional. As even members of the judiciary have noted, there is nothing wrong with criticizing the rulings of any court, including the Supreme Court. But it is another thing entirely to attack a presidentially appointed, Senate-confirmed judge’s legitimacy, or to attack another based on his heritage. Such attacks reveal a profound disregard for constitutional checks and balances, which preserve the rights of all Americans.

Now the Senate is asked to consider the very first judicial nominee appointed by President Trump, who in his first few weeks showed an outright hostility toward the judiciary. I had hoped that President Trump would work in a bipartisan way to pick a mainstream nominee like Merrick Garland and bring the country together. Instead, he promised to pick a nominee who would overturn Roe v. Wade and deprive women of the right to make their own health care choices and then outsourced his selection process to far-right interest groups. These groups receive significant funding from the Koch brothers and other conservative donors. Americans deserve a justice who will apply the law, not the ideology of a few wealthy mega-donors.

Before Senate Republicans waged the unprecedented blockade of Chief Judge Garland’s nomination to the Supreme Court last year, they described him as a consensus nominee and an ideal candidate for the nation’s highest court. But once Chief Judge Garland became a Supreme Court nominee, Senate Republicans would not even allow him a hearing, departing from a century of Senate tradition. So it is surprising now that Senate Republicans are demanding a swift up-or-down vote on a nominee appointed by a president with clear hostility toward our independent judiciary.

As a senator I take an oath to the Constitution, not to the president. In light of the unconstitutional actions of our new president, the Senate owes the American people a thorough and unsparing examination of Judge Neil Gorsuch, President Trump’s Supreme Court nominee. That should include at least four days of hearings in the Senate Judiciary Committee where senators can ask questions of the nominee and also hear from multiple panels of outside witnesses.

With the ideological litmus test that President Trump has applied in making this selection, the American people are justified to wonder whether Judge Gorsuch can truly be independent of the president who nominated him, and the moneyed interests that hand-picked him. This question can only be answered in an open and transparent process in the Senate Judiciary Committee, in contrast to the backroom and unilateral decision to deny Chief Judge Garland a hearing.