Judge Gorsuch, We Wont Be Fooled Again - by Charles Schumer
By CHARLES E. SCHUMERFEB. 10, 2017
Just three weeks in, the Trump administration has tested the limits of executive power, violated the separation of powers and shaken the very roots of the Constitution. A particular theme of President Trump’s first days in office has been contempt for the judicial branch as a check on his authority: He criticized individual judges, preemptively blamed them for all future terrorist attacks and ridiculed the court system as “disgraceful.”
Given the administration’s disdain for the judiciary, any nominee to the Supreme Court, particularly by this president, must be able to demonstrate independence from this president. The bar is always high to achieve a seat on the Supreme Court, but in these unusual times — when there is unprecedented stress on our system of checks and balances — the bar is even higher for Judge Neil M. Gorsuch to demonstrate independence. In order to clear it, he will have to convince 60 of my colleagues that he will not be influenced by politics, parties or the president. The judiciary is the last and most important check on an overreaching president with little respect for the rule of law.
The only way to demonstrate the independence necessary is for Judge Gorsuch to answer specific questions about the judiciary and his judicial philosophy. Of course, a judicial nominee should not prejudge how he or she would rule in a specific case to come before the court, but that does not preclude the nominee from answering basic and specific questions about judicial philosophy or how he would have decided past cases. Doing so would make the nominee no more biased than any of the justices who now sit on the court and issued opinions in those cases.
When I met with Judge Gorsuch on Feb. 7, I sought to ascertain his potential to be an independent check on the president. The judge was clearly very smart, articulate and polite, with superb judicial demeanor. But over the course of an hour, he refused to answer even the most rudimentary questions.
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 to 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.”
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https://www.nytimes.com/2017/02/10/opinion/sunday/charles-schumer-judge-gorsuch-we-wont-be-fooled-again.html?emc=edit_th_20170211&nl=todaysheadlines&nlid=57435284
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