Why Trump's Attacks on the Judiciary Should Worry Us About Judge Gorsuch and Other Nominees

February 7, 2017
Guest Post

by Adam Shah. Shah worked for D.C. nonprofits on issues related to the Supreme Court nominations of John Roberts, Harriet Miers, Samuel Alito, Sonia Sotomayor, and Elena Kagan.

Over the weekend, President Trump went on a 2-day-long Twitter rampage against a Seattle-based federal judge who halted his executive order banning immigrants from seven Muslim-majority nations. Commentators have decried Trump for singling out a lone federal judge for attack, calling it an attack on the independence of the federal judiciary. This is true, but our federal judges are strong, life-tenured and can withstand harsh criticism without losing their commitment to making decisions based on law, not political considerations. 

What should cause us worry, however, is the implications of Trump's attacks for his judicial nominees, including his Supreme Court nominee, Judge Neil Gorsuch. If Trump is so easily angered by a judicial ruling that blocks one of his orders, what is likely the most important criterion Trump has for his judicial nominees? Loyalty. 

This, of course, is the worst litmus test a president could have. Presidents may not like it, but they know that their own nominees will rule against their actions at times; Supreme Court Justices Elena Kagan and Sonia Sotomayor did it to President Obama. Having federal judges who will stand up to even the president that appointed them is one of the hallmarks of our judicial system, and that independence would be destroyed if a president picked nominees based on their unwillingness to do that. 

The Senate Judiciary Committee, which holds confirmation hearings on all judicial nominees tries to confirm that nominees will adhere to a standard of judicial independence. The committee asks judicial nominees on their standard questionnaire whether anyone during the nomination process has discusses any pending case or legal issue in a way that gave the nominee the impression that he or she was being asked to give assurances regarding the nominees' position on the case or issue. 

But this simply is not a sufficient safeguard when dealing with a president who appears not to believe in judicial independence. The Judiciary Committee could alter the question to ask whether nominees were asked for commitments to uphold Trump's actions. But this is still unlikely to be enough. The Committee must insist on getting a list of all people involved in the judicial selection process with whom Trump's nominee met about their potential nominations and then conduct separate sworn depositions with each participant as well as the nominee to ensure that they each tell the same story about what the nominee said. If the nominee is a federal judge seeking elevation, the Committee must also scour a nominee's record to see if there are examples of the nominee showing independence from the president or party that appointed him or her. 

This procedure must start with Gorsuch but must continue with lower court nominees, who, as last week's activity regarding the immigration ban shows, will be on the front line, making the first decisions about whether Trump's executive orders are authorized by statute and by the Constitution. 

Republicans, who control the Judiciary Committee and the Senate, may not initially welcome the scrutiny of Trump nominees, but an independent judiciary is of the highest importance and Trump's attacks are so unprecedented that the additional scrutiny is necessary.