I asked him whether an unambiguous Muslim ban would be constitutional. He refused to answer. I asked him if he agreed with conservative lawyers who say the president has abused executive power. He refused to answer. I asked him whether he thought the president’s comments on voter fraud would undermine our democracy. He refused to answer. I asked him about landmark cases like Citizens United and Bush v. Gore. He refused to answer. Since he claims to be an originalist, I asked him about his view of what the framers intended with the Emoluments Clause in our Constitution.
He refused answer any of these questions. He told me he couldn’t give me his view of any case, past or present, or any constitutional principle, because it might bias him. This blanket excuse frustrates any examination of what kind of judge the nominee will be. As the conservative icon Chief Justice William H. Rehnquist wrote, “Proof that a justice’s mind at the time he joined the court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.”
Without any hints about his philosophy or examples of how he might have ruled on landmark cases, the only way that Judge Gorsuch was able to demonstrate his independence as a jurist was by asserting it himself. He could give no evidence of it in his record, and therefore I could have no assurance of it in the future.
As I sat with Judge Gorsuch, a disconcerting feeling came over me that I had been through this before — and I soon realized I had, with Judge John G. Roberts Jr. He was similarly charming, polished and erudite. Like Neil Gorsuch, he played the part of a model jurist. And just like Neil Gorsuch, he asserted his independence, claiming to be a judge who simply called “balls and strikes,” unbiased by both ideology and politics.
When Judge Roberts became Justice Roberts, we learned that we had been duped by an activist judge. The Roberts court systematically and almost immediately shifted to the right, violating longstanding precedent with its rulings in Citizens United and in Shelby v. Holder, which gutted the Voting Rights Act. Before Justice Scalia died, the court was on the precipice of violating precedent again with Friedrichs v. California Teachers Association, which would have eviscerated unions. In each instance, there was an attempt to tilt the scales of justice in favor of big business or right-leaning interests. Rather than calling balls and strikes, Chief Justice Roberts was a 10th player, shifting the power structure toward the privileged and away from the average American.
The overarching lesson of Chief Justice Roberts can be summed up in a familiar phrase: Fool me once, shame on them; fool me twice, shame on me.
Judge Gorsuch’s behind-closed-doors admission that he felt “disheartened” by President Trump’s attacks on judges could well be akin to Judge Roberts’s “balls and strikes.” Judge Gorsuch told it to me in private; when Senator Richard Blumenthal of Connecticut and I asked him to say it in public, he refused. Clearly he wanted this to be seen as a marker of his independence, because his handlers immediately told us, “You can tell this to the press.” A truly independent judge would have the fortitude to condemn the president’s remarks, not just express disapproval, and to do it publicly. The White House’s assertion that Judge Gorsuch’s private remarks were not aimed at Mr. Trump only raises concerns about his independence.
My fellow senators should know that Judge Gorsuch was eerily similar to Judge Roberts. He played the part but was entirely unwilling to engage in a substantive discussion that — crucially — could have given me confidence in his independence as a judge.
Judge Gorsuch must be far more specific in his answers to straightforward questions about his judicial philosophy and opinions on previous cases. He owes it to the American people to provide an inkling of what kind of justice he would be.
Continue reading the main story