While Democrats have thus far maintained a more or less unified front against Republicans’ attempts to steal a Supreme Court seat that should have been President Obama’s to fill, President Trump’s nomination of Neil Gorsuch has thrown a bucket of cold water over the debate. Despite possessing a far-right, “originalist” (read: reactionary with intellectual pretensions) judicial philosophy in line with the late Antonin Scalia, Gorsuch is widely viewed as a respectable, mainstream choice to serve on the high court. In his sober temperament and intellectual bent, Gorsuch ostensibly stands in sharp contrast to the belligerent, jurisprudentially ignorant president who selected him. This shouldn’t matter; in accepting a nomination to the high court from authoritarian demagogue Donald Trump, Gorsuch betrayed his own principles and disgraced himself beyond redemption.
Yet, on Wednesday, Judge Gorsuch, whether out of genuine conviction or cynical political calculus, attempted to distance himself from the excesses (to put it mildly) of the executive branch. In a meeting with Sen. Richard Blumenthal (D-CT), Judge Gorsuch rebuked Donald Trump for his unprecedented attacks on the judiciary, in particular singling out his reference to James Robart, the Seattle circuit judge who blocked his Muslim ban as a “so-called judge.” While it is highly unusual if not unheard of for a Supreme Court nominee to criticize the president who nominated him, Democrats should take Gorsuch’s words for what they are: too little, too late.
First and foremost, they have no bearing on Gorsuch’s far-right judicial philosophy, which progressives have every incentive to oppose on ideological grounds. With Roe v. Wade, the environment, criminal justice reform and a whole slew of other key issues at stake, Gorsuch’s discomfort with Trump’s rhetoric should not weigh highly on Democrats’ minds when it comes time to vote yea or nay.
Second, the substance of Gorsuch’s critique is lacking. The words he used to describe Donald Trump’s actions-“disheartening,” “demoralizing”-severely downplay and normalize the severity of President Trump’s unprecedented assault on the judicial branch and his disregard for the separation of powers. Trump’s words are not, as Gorsuch implies, simply unfortunate; on the contrary, they constitute a deliberate effort to delegitimize the judiciary in general and attack the individual judges who stand in the way of his agenda.
On Wednesday, Donald Trump sought to paint all judicial opposition to his Muslim ban as inherently partisan: “I don’t ever want to call a court biased, so I won’t call it biased. But courts seem to be so political, and it would be so great for our justice system if they would be able to read a statement and do what’s right.” What’s “right,” of course, being what President Trump deems correct, with little regard for dissenting views rooted in Constitutional law, precedent or logic. Trump even went so far as to assign blame in advance to ”[Judge Robart] and the court system if something happened.” In other words, Trump has called on the American people to blame the judiciary for any and all future terrorist attacks unless it approves his Muslim ban. This is nothing less than blackmail from the bully pulpit. Trump’s demagoguery flies in the face of the separation of powers and should set off alarm bells for anyone who values an independent judiciary.
Gorsuch’s response, which Trump is already seeking to discredit since it came from Sen. Blumenthal and not the judge himself, is woefully inadequate. In light of the Trump administration’s all-out rhetorical war on a co-equal branch of government, an aspiring Supreme Court justice should respond with far more than gentle words of reproach in a private meeting that we’re only aware of because Sen. Blumenthal saw fit to mention them. If Gorsuch was truly concerned about Trump’s assault on the judiciary, he could at the very least make a public statement. But even such a statement would be too little, too late. Indeed, no words are enough to cleanse Judge Gorsuch’s original sin: accepting a nomination to the high court from Donald Trump in the first place.
It is impossible to view President Trump’s current assault on the judiciary in isolation. If anything, it was inevitable. The 2016 presidential campaign yielded bountiful evidence that Trump had little regard for the courts, judges or the legal system. Most egregiously, candidate Trump infamously suggested that Judge Gonzalo P. Curiel, born and raised in the United States, could not rule impartially on Trump University due to his Mexican heritage. Is it really surprising that Donald Trump would continue to question the authority of federal judges once in office? In addition, Trump furnished lavish praise and $25,000 on Florida Attorney General Pam Bondi for quashing an investigation into the same Trump University, making a mockery of the justice system to head off a campaign scandal. Perhaps worse than any individual transgression, Donald Trump has flouted Constitutional norms. On numerous occasions, Donald Trump has shown a disregard for the First Amendment,, impugning the motives of protestors and attempting to silence those who spoke against him.
And of course, Neil Gorsuch, like all Americans paying attention, witnessed candidate Trump propose a Muslim ban, which would entail a blatantly un-Constitutional religious test. Indeed, candidate Trump’s remarks about barring Muslims entry to the United States are so damning that they may serve as pretext for his so-called “travel ban” to be halted or even struck down. Suffice to say, Donald Trump’s disrespect for the Constitution and the judiciary have been on display in various forms virtually since he announced his candidacy for president.
This begs the question: how could Neil Gorsuch, with his impeccable legal credentials, accept a nomination to the high court from Donald Trump, a populist demagogue with authoritarian impulses? Furthermore, why, only now, after he has received his nomination, is Gorsuch speaking out against Donald Trump’s unprecedented disrespect for the judiciary? Has he only now seen the light? This would call his judgment into question.
Or, is it possible that, far from the apolitical arbiter of the law portrayed in so many sympathetic profiles, Judge Gorsuch is not averse to playing politics? After all, gently criticizing President Trump in a private meeting is a great, cost-free way of striking an independent pose and thereby currying favor with Democrats whose support would make his nomination far easier. Either way, chiding Donald Trump at this late date does not absolve Gorsuch of the far greater sin of lending his prestige to a presidency that no true Constitutional conservative could endorse.
None of this is to say that Gorsuch’s distaste for President Trump is not genuine. But clearly, he has adopted the same calculus as conservatives in general: it is more important to have a far right justice on the Supreme Court than it is to uphold judicial and Constitutional norms. True fidelity to the Constitution would have precluded support for authoritarian demagogue Donald Trump and necessitated providing advice and consent for President Obama’s Supreme Court nominee, Merrick Garland. In failing on both counts, Gorsuch and “Constitutional conservatives” betrayed their principles and dealt a major blow to the already fragile idea of an independent, apolitical judiciary. These “conservatives” sold their souls (and their votes) to Donald Trump and the alt-right for a Supreme Court seat. It will take far more than a gentle reproach of Donald Trump after the fact for Gorsuch and those like him to make things right.