March 21, 2017

Can't We At Least Agree on the Rule of Law?


  • Democratic leaders keep trying out unfair attacks on Judge Gorsuch.
  • Now they are attacking Judge Gorsuch for ruling against sympathetic litigants.
  • These attacks undermine the rule of law and key tenets of due process.

Democrats’ unfair and illogical attacks on Judge Neil Gorsuch have been completely predictable. They promised to use every available strategy to block anyone the president nominated to fill Justice Antonin Scalia’s seat on the Supreme Court. Even before Judge Gorsuch was nominated, Democratic leader Chuck Schumer warned that Democrats would fight “tooth and nail” against the president’s Supreme Court nominee and threatened that they would try their best “to keep the seat open.”

Quote Graphic - Attack on the Rule of Law

When the president nominated a mainstream and highly qualified judge – one who was confirmed to the 10th Circuit by voice vote and who recently received the highest possible rating from the American Bar Association – Senator Schumer and other Democratic leaders got desperate. They tried to impugn Judge Gorsuch’s judicial independence. The charge fell flat for a judge whose defining issue has been identified as the separation of powers and who has written on the importance of an independent judiciary. Democrats attacked Judge Gorsuch during his courtesy visits for not answering hypothetical questions or questions on issues likely to come before the court. Their complaints ignored the judicial ethics rules and longstanding norms that prohibit judges and nominees from answering such questions.

this is the most misguided attack yet

Despite the fact that Judge Gorsuch is an exceptionally qualified judge with bipartisan support, Democratic leadership has faced intensifying pressure from its liberal base to obstruct his nomination. Apparently responding to this pressure, Senator Schumer last week held a press conference attacking Judge Gorsuch. The event featured sympathetic people who had found themselves on the losing side of Judge Gorsuch’s opinions in the past. The stunt implies that the Democratic leader thinks a judge should rule for the parties he or she feels are most sympathetic, or in response to political wishes, rather than how the law demands. This argument is an attack on the rule of law and fundamental tenets of due process, which protect litigants against decisions by a biased judge. 

A judge should be impartial and follow the law

The content of the federal judicial oath, prescribed by statute, underscores the importance of a judge as a neutral arbiter in our democratic system of government. The oath requires that a judge swear to “administer justice without respect to persons, and do equal right to the poor and to the rich,” and “faithfully and impartially discharge and perform all the duties incumbent upon” the judge “under the Constitution and laws of the United States.”

The ABA model code of judicial conduct also illustrates the proper role of a judge in avoiding arbitrary outcomes based on the identities of the parties. The rules require that a judge “uphold and apply the law” and “perform all duties of judicial office fairly and impartially.” A judge must also “perform the duties of judicial office ... without bias or prejudice.” In commentary, the ABA adds that to “ensure impartiality and fairness to all parties, a judge must be objective and open-minded.” Additionally, although “each judge comes to the bench with a unique background and personal philosophy, a judge must interpret and apply the law without regard to whether the judge approves or disapproves of the law in question.” 

Given that our entire judicial system is built on the ideals of impartiality and due process, it is no surprise that Senator Schumer’s attacks on Judge Gorsuch were widely panned by the legal community. Conservative legal scholar Ed Whelan asked why Senator Schumer was “abandoning the rule of law in attacking the Gorsuch nomination.” Liberal Harvard Law School professor Noah Feldman agreed, calling the criticism that Judge Gorsuch “doesn’t side with the little guy” a “truly terrible idea.” Feldman noted that “justices – including progressive justices – shouldn’t decide cases based on who the parties are.” After all, the “rule of law isn’t liberal or conservative – and it shouldn’t be.” As Judge Gorsuch has put it himself, “a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels.” 

Most senators recognize that judges should be impartial. At a confirmation hearing several years ago, a Democratic senator described how a judicial nominee put the “rule of law above everything else.” He noted that the judge “hewed carefully to the text of statutes, even when doing so results in rulings that go against so-called sympathetic litigants.” The senator was Chuck Schumer, and the judge he was praising was Justice Sonia Sotomayor.

Issue Tag: Judiciary