So-Called Justice? Five Questions for Donald Trump’s Supreme Court Nominee

February 6, 2017
Guest Post

*This piece originally appeared on The Huffington Post.

by Lara Schwartz, Former ACS Director of Strategic Engagement and Professorial Lecturer, SPA Honors Program Director and Adjunct Professor, Washington College of Law at American University

After Judge James Robart of the U.S. District Court for the Western District of Washington issued an order halting enforcement of President Trump’s executive order on immigration, Trump took to Twitter, stating “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” Opponents rightly sounded the alarm about this extraordinary disrespect for the judicial function and our Constitution. Sen. Chuck Schumer tweeted that it “shows a disdain for an ind. Judiciary that does not bend to his wishes & lack of respect for the Constitution.”

This is not simply one more example of Trump’s thin-skinned attitude or his intolerance for dissent. It casts doubt on his capacity to fulfill his constitutional duty to nominate fair-minded, independent judges. Everything we know about Trump should lead us to believe he wants to nominate judges who will put loyalty to him above faithfulness to the law. This means any potential justice whom Trump would consider a satisfactory choice to fill the late Justice Scalia’s seat would be presumptively unfit.

Trump introduced his nominee, 10th Circuit Judge Neil Gorsuch, to America just days after the executive order that “so-called” federal judges have halted. It is now incumbent upon Gorsuch to demonstrate that in spite of having earned Trump’s approval, he is an independent thinker who can keep his oath to uphold our Constitution and not, in the words of Molly Ivins, to “dance with them what brung” him.

So just how did Gorsuch earn this spot? He was not on the original list of potential nominees that candidate Trump released in May 2016, but was on his finalized list from September. The origin of the list is predictable— Trump acknowledged that the conservative Heritage Foundation was helping him assemble it.

The fact that Gorsuch was on Trump’s list (and thus acceptable to Heritage) tells us that he would be reliably conservative; that he would be likely to rule against abortion rights and consumers’ rights and for corporate defendants; and that he would be hospitable to claims of religious liberty used as a pretext for discrimination (in fact, Judge Gorsuch voted to permit the owners of Hobby Lobby, a for-profit company, to deny their employees coverage for certain forms of contraception based on their religious objections). There are quality analyses of Gorsuch’s record- as the heir to Justice Scalia and as a friend to business along with profiles of his years as a brash, self-assured young conservative who was contemptuous of civil rights activists and progressives.

Gorsuch’s record (to say nothing of the extraordinary fact that this seat is open now at all) is, and should be, a legitimate reason to oppose him. As America gets to know Gorsuch, this nomination will serve as a stinging rebuke to those who declared the two major party candidates were equivalent. For example, it could speed the demise of Roe v. Wade, a decision that close to 7 in 10 Americans support. And if this 49-year-old judge is confirmed, the consequences will last decades beyond the Trump era.

But so far, this is the stuff of ordinary judicial nominations politics. Since I began working on judicial nominations advocacy in 2002, most of the judicial nominations I have seen have fallen into one of three categories: Some stand out because the Supreme Court is sharply divided on ideological lines (now-Chief Justice Roberts). Some are notable because of the nominee’s extreme record (11th Circuit judge William Pryor, who was reported to be among Trump’s three finalists for this seat, stands out as the most anti-LGBT nominee I can remember). Finally, some have involved extreme departures from the Senate’s traditions and obligations—such as Sen. McConnell’s refusal to confirm any judges to the U.S. Court of Appeals for the DC Circuit.

Gorsuch arguably fits into all three of those categories. The fact that he is Trump’s Supreme Court nominee — having demonstrated to the president that he is the one on that list who should fill that seat - means that we are in new territory. This time, it is the nominating president, even more than his ideologically-extreme pick, that makes this nomination extraordinary and, I would argue, unprecedented.

If we know one thing about Donald Trump’s personnel choices, it is that he prefers loyalists over all others: billionaire mega-donor Betsy DeVos, whose most prominent qualification appears to be the millions she spent to win him the White House; White House adviser Jared Kushner, Trump’s 36-year-old son-in-law, who is a real estate scion with no policy experience; former Exxon CEO Rex Tillerson, a Putin ally the extent of whose potential to enrich the Trump Organization we might never know, thanks to Trump’s refusal to release tax returns or step away from his business interests.

This is a president who plants staff in the room to applaud his speeches. This is a president who appears to have pushed his spokesperson to overstate attendance at his inauguration.

This is a president who demonstrates daily that loyalty to him is the most valuable asset he looks for in those he hires. Alarmingly, it increasingly appears that his obsession with loyalty extends even beyond his allegiance to our Constitution, separation of powers, or the rule of law.

His behavior regarding acting Attorney General Sally Yates illustrates this. When Yates declined to defend Trump’s executive order - after several judges had issued orders halting it —Trump fired her.

It is true that president is entitled to appoint his own attorney general. But the language of the White House’s announcement was chilling: it said Yates “has betrayed the Department of Justice.” And that “Ms. Yates is an Obama Administration appointee who is weak on borders and very weak on illegal immigration.” An ordinary president would exercise his right to disagree with Yates’ action; only an authoritarian would characterize a lawyer’s reasonable interpretation of our Constitution as a betrayal.

It is also ironic, given that at Yates’ 2015 confirmation hearing, Sen. Jeff Sessions—whom Trump has nominated to be attorney general—asked her whether she would be willing to stand up to the president: “Do you think the attorney general has the responsibility to say no to the president if he asks for something that’s improper?” When Yates responded that she would provide independent legal advice, Sessions went on: “And like any CEO, with a law firm — sometimes the lawyers have to tell the CEO: ‘Mr. CEO, you can’t do that. Don’t do that. We’ll get us sued. It’s going to be in violation of the law. You’ll regret it, please.’ No matter how headstrong they might be.”

In other words, Yates had a duty to say no to President Obama, but was fired for saying no to President Trump.

Because Trump only favors yes men (and yes women, but only if they dress like women), Gorsuch must prove that he is willing to do the job of a Supreme Court justice and say “no” when the law calls for it. We learn on the very first day of law school about the principle of juridical review as articulated in the 1803 case of Marbury v. Madison: “it is emphatically the province and duty of the judicial department, to say what the law is.” Because the president is on the record disagreeing with this pillar of our system of checks and balances, the Senate must safeguard the American people from the possibility that this nominee is exactly what Trump wants him to be: a rubber stamp.

Here are the questions senators must ask:

  • Why do you think President Trump chose you among all of the qualified candidates he was considering?
  • What did the president ask when he interviewed you? (When he declines to answer, senators must amplify the fact that Trump himself put this question on the table when he declared that judges who disagree with him are not judges at all).
  • Did President Trump ask you whether you thought his immigration executive order was constitutional?
  • Do you agree with Sen. Sessions that a government lawyer must sometimes say no to the president, or that her good-faith decision not to defend an executive order that federal court had already temporarily blocked constitutes a “betrayal?”
  • Do you believe that it is proper for a president to cast doubt on a federal judge’s authority, calling him a “so-called judge,” just because the judge ruled against him?

Judge Gorsuch will try not to answer these questions, but senators must ask him anyway. And if Judge Gorsuch does promise to act independently, just as Sally Yates did, then America will see Trump’s response and know where we stand. This is fitting because Trump has demonstrated that it is he, as much as Gorsuch, whom the Senate must now vet in order to keep the executive branch in check.

We, The People are entitled to a Supreme Court that functions independently of the executive. It is the Senate’s duty to ensure that whoever fills Justice Scalia’s seat will be such a judge. President Trump’s extraordinary contempt for the rule of law and preference for those who defer to him casts doubt on Gorsuch himself. Therefore, the Senate must grapple with the extraordinary contradiction that this nomination presents: no one who has earned Trump’s trust could be qualified for a job that requires independence.