February 14, 2017

Democrats Won't be Fair to Judge Gorsuch


  • Democratic leaders have been promising to obstruct the Supreme Court nominee since before the inauguration.
  • When the president nominated a mainstream and highly qualified judge, Democrats began making implausible and unfair attacks.
  • Judge Gorsuch is one of the best writers in the federal judiciary on the importance of judicial independence and the separation of powers.

democrats promised obstruction, and they intend to deliver

Democrats have been promising for months to try their hardest to block the confirmation of a new Supreme Court justice. In early January, before the president took office, Democrat leader Chuck Schumer pledged that his party was “not going to make it easy for them to pick a Supreme Court justice.” Just two days after the president was inaugurated, he continued to vow obstruction. He warned that Democrats would fight “tooth and nail” against the still-unannounced nominee and threatened to “do our best to keep the seat open.”

When President Trump nominated a mainstream and highly qualified judge to succeed Justice Antonin Scalia, the Democrats’ pre-planned obstruction became even harder to justify. Yet the Democrat leadership apparently needs some reason to keep their obstruction pact in force, and it appears that any ridiculous or illogical justification will do.

The Ginsburg Standard

their Criticism misses the mark

According to a February 7 CNN report, Sen. Schumer met with Judge Neil Gorsuch and “asked about a Muslim ban, the Emoluments Clause, voter fraud allegations and whether Gorsuch agreed with conservative lawyers who have said some of the President's executive orders have gone too far.” Sen. Schumer complained to CNN that the judge “avoided answers like the plague.” He repeated these grievances in a New York Times op-ed on February 12. This attempt to smear Judge Gorsuch misses the mark.

Judge Gorsuch is subject to the Code of Conduct for United States Judges, which prohibits a judge from making “public comment on the merits of a matter pending or impending in any court.” The American Bar Association Model Code of Judicial Conduct contains a similar prohibition, which provides that a “judge shall not, in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.”

Justice Ruth Bader Ginsburg spoke at length in her 1993 confirmation hearing on why nominees should not “say or preview [how they might] cast a vote on questions the Supreme Court may be called upon to decide.” To “rehearse” what she would say or reason on such questions would be to “act injudiciously.” She added emphatically that a “judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.” 

The same principle counsels against a judge or judicial nominee answering hypothetical questions on legal issues. As Justice Ginsburg noted, “Judges in our system are bound to decide concrete cases, not abstract issues.” That is why Justice Sonia Sotomayor at her confirmation hearing said that she could not “engage in a question that involves hypotheses.”

the implication is especially absurd for gorsuch

Sen. Schumer tried in his op-ed to assert that Judge Gorsuch’s restraint on issues likely to come before federal courts somehow casts doubt on his independence. This is a bizarre contention. As Chief Justice John Roberts explained at his confirmation hearing, the purpose of the Ginsburg standard is to protect the “independence and integrity of the Court.”

Judge Gorsuch is one of the most incisive writers in the federal judiciary on the importance of judicial independence and the separation of powers. One commentator, writing in the Denver Post on February 4, called the separation of powers Gorsuch’s “defining issue.” The judge has written that “the framers of the Constitution thought the compartmentalization of legislative power not just a tool of good government or necessary to protect the authority of Congress from encroachment by the Executive but essential to the preservation of the people's liberty.”

As Stanford Law School professor, and former 10th Circuit Judge Michael McConnell, wrote, “In times like these, we need judges ... who take their bearings from the Constitution, and not from party loyalties.” In Neil Gorsuch, he said, “we have such a judge.”

Issue Tag: Judiciary