President Trump, Neil Gorsuch, and the Judiciary

Written by Alainna Belknap | @tbhoverit | 9 February 2017 at 4:12PM

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It’s been nearly a year since the party of the Constitution first refused to allow President Obama to follow through with his Constitutional duty to appoint a Supreme Court Justice. Democrats in the Senate, and in neighborhoods across the United States, waited earnestly for advice and consent that would never come. In their political ploy to let the American people decide who would fill the seat, Republicans in the Senate waited until a President of their own party could make the call. The most unpopular president to take office, with a mandate of 3 million fewer votes than his opponent, has now given that long-awaited voice to will of the American people in his nomination of Judge Neil Gorsuch.

As with all previous Supreme Court nominations, Americans on all points of the political spectrum are evaluating what Gorsuch will mean for their most dearly held rights and liberties- and, for some, the rights and liberties of others they wish to see restricted. It’s clear that Gorsuch’s judicial record honors conservative objectives- deregulation, religious expression, restriction of contraception, and heavy handed criminal justice. Surprisingly, the most immediately burning question is not where Judge Gorsuch stands on these issues. Rather, Senators who will be voting to either confirm or reject this appointment are questioning Gorsuch’s ability, and willingness, to rule independently of the will of the White House.

At the onset of this judicial showdown, Senate Democrats have pledged to resist any nominee Trump brings forth. Their support is crucial, as Republicans hold only a 52-48 upperhand, and thus cannot rely on their majority alone to confirm Gorsuch. This vote could have grave implications reaching beyond this single confirmation: Senate Democrats may filibuster, which would require a supermajority vote to put to rest, and Trump expressed a willingness to pursue the “nuclear option” of changing Senate rules through a majority vote to abolish the filibuster for Supreme Court.

With the outlook looking so bleak, would Democrats be wise to silently thank the President for nominating a man of intellect and stature, who stands in stark contrast to the President himself? Should they reject the obstructionism they denounced so fiercely during the last year of the Obama presidency? In that argument, I fear false equivalency; the same false equivalency that pushed voters away from Hillary Clinton, towards Donald Trump, and away from their own interests.

The unfolding of this nomination process is a strange, but anticipated, event in Donald Trump’s war with the judiciary. During his campaign, Trump claimed that “Mexican” (Mexican-American) US District Judge Gonzalo Curiel’s heritage rendered him unable to be impartial in the class action lawsuit against Trump University. A look at Curiel’s judicial actions reveals his generosity towards Trump; most would’ve anticipated quiet acceptance on Trump’s part, given his political interest in limiting the publicity of the case during his campaign. Curiel denied nationwide class-action status to the plaintiffs, limiting their class action status to New York, Florida, and California, while narrowing the number of claims from fourteen to just five. When Trump University countersued one of the plaintiffs, the Ninth Circuit Court of Appeals ruled in her favor, and Curiel reduced her award for legal costs by nearly 40% less than what she had asked for, saving Donald Trump more than $500,000. Trump’s demonstrated animosity towards judges who rule against his interests intensifies the need for the Supreme Court to be comfortable ruling independently of the executive, even in the face of political lashback.

If onlookers thought that Trump’s friction with the courts would end with his assumption of the presidency, the events of the last three weeks have proven them sorely wrong. The executive orders signed by the President, particularly his immigration ban, have been met with claims of unconstitutionality by both Republican and Democratic members of the intelligence agency, the State Department, and various legal experts. When Judge James Robart of the Federal District Court of Seattle, a demonstrated conservative nominated by President Bush, rejected the administration’s request to restore the travel ban, the President Tweeted that he “just cannot believe a judge would put our country in such peril. If something happens blame him and court system.” And so begins what may become four years of strife between the executive branch and the judicial branch of the United States government.

In middle school, American students are taught of the tragedies perpetrated by authoritarian governments of times past and places far away. These recounts of history are taught in hopes that they will serve a cautionary purpose. In our education, we find ourselves asking how such injustices could be executed without any halt by strong institutions that are independent of the elected leader. The answer to that question in America has always been found in our firm and fair court system. Without insinuating an impending doom, I stress the necessity and legitimacy of every American court and applaud the bravery of the judges who are forced to identify themselves as political dissidents to the United States government in their defenses of our Constitution. Now, more than ever, judges are going to find themselves facing political consequences if they rule against their President, and they must be comfortable with that friction.

What does Donald Trump’s relationship to the American courtroom mean for Neil Gorsuch? If confirmed as the ninth justice, cases that come before the Supreme Court could present real opportunities to define the confines of American presidential power. They could offer opportunities to affirm for the lasting nature of our Constitution, no matter who holds the highest office. They could, in short, give Gorsuch and the rest of the Supreme Court an opportunity to put the force of the Constitution behind Donald Trump’s statements and actions, or against them. And though Gorsuch denounces what he sees as an “overweening addiction to the courtroom as the place to debate social policy,” the historic role of the Supreme Court is to do just that. The weight of this responsibility should be understated by none, especially not Gorsuch himself.

However, his conservative credentials could be matched by few other picks. His impressive resume will likely lend to a degree of bipartisan admiration; he and President Obama hail from the same Harvard Law graduating class. A Tuesday meeting between Gorsuch and Senate Minority Leader Chuck Schumer shows that Democrats are making their first steps towards giving Gorsuch the fair shot that they feel Judge Merrick Garland deserved, and rightly so. Schumer holds firmly that Gorsuch must prove himself moderate enough to garner 60 votes. Schumer speaks for all Americans who wish to preserve our democracy in his assertion that the President’s unprecedented conflict with the Constitution will require a Supreme Court Justice who is willing to act as an “independent check on an out-of-control executive.”

In a dramatic twist of events, Senator Richard Blumenthal disclosed to reporters on Wednesday that Gorsuch privately called Trump’s Tweets attacking Judge Robart “disheartening” and “demoralizing.” If this initially consoled Democratic leaders who were worried about Gorsuch’s willingness to rule independently, the events to come would further dash their hopes. Within a day, DNC Senior Adviser Zac Petkanas indicated that there is reason to believe Gorsuch’s criticisms were orchestrated by Steve Bannon, who sought to push back against the perception that Gorsuch will be a “rubber stamp for the Trump Administration.” If true, not only will Neil Gorsuch be unwilling to rule independently, but he has already shown secretive political allegiance to the administration in his efforts to be confirmed.

If nothing else is presently clear, it is certain that Gorsuch’s nomination to a stolen seat will haunt his confirmation hearings, and rightly so. If appointed, Gorsuch will rule on cases that either grant or revoke the rights of every American citizen. Given his age of just 49 years, Gorsuch will be ruling on such cases until college students like us are in our later stages of life. With a hearing expected to come in the next six weeks, America’s year-long judicial drama may come to an end with great consequence for not only the Trump administration, but for our nation for generations to come.

As a young woman insured by the Affordable Care Act, who wishes to insure her future from avoidable outcomes that limited the destinies of so many women who came before me, this appointment is personal. Despite Neil Gorsuch’s objections, the Supreme Court is the place to debate social policy, and these policies have the power to determine the trajectory of the rest of my life. It is my sincerest hope that Mr. Gorsuch will come to appreciate the awesome power that this position in our government could grant him, and that Senators on both sides of the aisle are tough and fair in their assessment of his ability to rule independently of the whims of the White House.

Alainna Belknap is a junior of international affairs and French who serves as Vice President of Community Service for GW College Democrats. She works for the Center for Civic Engagement and Public Service as a service-learning scholar, as well as an ambassador for Planned Parenthood of Metropolitan DC. She is interested in foreign policy, civil law, and political communication, and hopes to go on to law school after graduation.

The opinions of individual writers are their own and do not necessarily reflect the organizational stance of the GW College Democrats. DemsBlog is committed to serving as a platform for a diverse range of ideas, opinions, and experiences.