Opinion: Gorsuch should be considered for the Supreme Court on his merits, not on Trump’s tweets

Almost everyone agrees that Donald Trump crossed the line — big-league, as the president would say — with a tweet over the weekend in complaining about a federal judge’s order blocking enforcement of Trump’s executive order on immigration. Trump referred to the opinion of “this so-called judge,” which seemed to call into question the legitimacy of U.S. District Judge James Robart of Seattle.

Yes, other presidents have criticized the courts. President Obama famously dressed down the Supreme Court for its Citizens United decision in a State of the Union address attended by some of the justices – but Trump’s tweet insinuated not just that Robart’s ruling was mistaken but that he had no authority to make it. That’s a distinction with a difference.

This was a second offense against the federal judiciary for Trump, following his suggestion last year that a judge of Mexican ancestry couldn’t fairly adjudicate a civil case involving Trump University.


Trump deserved all the criticism that rained down upon him for his attack on Judge Robart. But Senate Democratic leader Chuck Schumer pivoted from criticizing Trump to trying to make his crack an issue in the confirmation of Judge Neil Gorsuch, Trump’s nominee to the Supreme Court.

“With each action testing the Constitution, and each personal attack on a judge, President Trump raises the bar even higher for Judge Gorsuch’s nomination to serve on the Supreme Court,” Schumer said. “His ability to be an independent check will be front and center throughout the confirmation process.” Other Democrats have made similar comments.

Eric Posner, a professor at the University of Chicago Law School, went further and wrote in The New York Times that Gorsuch “must publicly condemn the president’s attack on the judge who blocked his immigration order.” If he didn’t, Posner, said, “his supporters in the legal community should withdraw their backing for his nomination.”

Wait a minute.

First of all, there is no evidence that Gorsuch would be a patsy for Trump on the court. He isn’t a Trump crony and has been a federal judge since long before anyone speculated about a Trump presidency outside the confines of a TV comedy writers’ room. (Whatever one thinks of Gorsuch’s jurisprudence, the nation should be grateful that Trump nominated an experienced and respected jurist, not, say, some real-estate lawyer he met on the golf course.)

Even if Gorsuch had worked for Trump, there is abundant evidence that serving a president in the past doesn’t mean a justice is a safe vote for that president’s priorities. Justice Elena Kagan served as Obama’s solicitor general before he appointed her to the court; she ruled against the administration’s position in several major cases.

More to the point, as Schumer and Posner well know, a Supreme Court justice has life tenure, the ultimate insurance policy against manipulation by a president (or anyone else).

Given these realities, it seems like a stunt to demand that Gorsuch condemn Trump’s tweet, although some Democrats on the Senate Judiciary Committee probably will make the effort.

As Posner concedes, Gorsuch is on record as celebrating the importance of judicial independence in an opinion in which the judge wrote: “To this day, one of the surest proofs any nation enjoys an independent judiciary must be that the government can and does lose in litigation before its ‘own’ courts like anyone else.”

Unless there is some reason to believe he would be a Trump puppet on the bench, why make Gorsuch repeat that statement with the addition “and this means the president who appointed me too”?

Posner suggests that a rebuke from Gorsuch might “protect the judiciary from further attacks from Mr. Trump for years to come.” Really? Trump isn’t exactly known for reacting positively to criticism.

Gorsuch should be considered on his own merits, not on the basis of the tweets of the president who nominated him.

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