Restoring Judicial Independence

March 15, 2017
Guest Post

by Caroline Fredrickson

This week marks a national initiative to highlight transparency, accountability and open government. The timing could not be better.

Sunshine Week, March 12-18, falls the week before confirmation hearings begin for Trump’s Supreme Court pick.

National discourse has centered on the president’s commitment to core constitutional values and his understanding of the importance of rule of law. Indeed, leading constitutional scholars have already raised red flags on numerous issues and lawsuits have been filed.

Events of the last few months have increased the gravity of the decision about who should fill the ninth seat on the Supreme Court. The Supreme Court is often the last defense for our Constitution and it is imperative that any nominee not be beholden to any one person, let alone the president of the United States.

Throughout his campaign and since his election, the president repeatedly emphasized that his Supreme Court nominee would be the most conservative jurist he could find, and he made sure his nominee passed a series of litmus tests, including on reproductive rights and gun safety laws. This compromises the independence of the judiciary at a time when we especially need to rely on the courts to make their own assessment of the constitutionality of legislative and executive actions. Decisions from federal judges across the country impact the lives of all of us, from how we are treated in the workplace, how the law regards women, racial minorities and those with disabilities, among others, consumer protections, the safety of our environment, our right to vote and our immigration system – just to name a few issues.

Our federal courts must be independent and our judges must be open-minded and fair.

And yet, we have a president who is undermining and attacking the courts.

Twitter is littered with Trump’s rants on the character and integrity of judges. First, there was Judge Gonzalo Curiel, who presided over a case involving Trump University. Then-presidential candidate Trump called Curiel a “total disgrace.” Later came Judge James Robart, who halted Trump’s Muslim ban. He was labelled a “so-called judge.”

Linda Klein, president of the American Bar Association is right: “personal attacks on judges are attacks on our Constitution.”

Congress can – and must - play an active role in holding the administration accountable.

Next week, senators have the opportunity to rise to the occasion and demonstrate how important courts are and why judicial independence is crucial.

As part of senators’ advice and consent role, they will have the opportunity to question Judge Gorsuch during his confirmation hearing. The hearing is the only opportunity for the public to hear directly from the nominee, himself, and so it is vital that senators ask him tough questions and demand answers.

Trump's selection process for a Supreme Court nominee was unprecedented. There are real concerns raised by the litmus tests that the president promised that his judicial nominee has met. Gorsuch’s record on the bench demonstrates a departure from decades of precedent. At the same time, there is information about the judge's time at the Department of Justice that is still unknown despite repeated requests for information. Add to this nomination process the fact that Gorsuch was selected by a president with numerous constitutional challenges that are already being disputed in court.

Our democracy depends on an independent judiciary. The significance of this lifetime appointment cannot be overstated. If confirmed, he will be on the Court for decades to come and will shape the direction the Court takes. We need to ensure that senators' questions are answered, and next week’s confirmation hearing is an important part in restoring transparency.