Gorsuch Confirmation Shaping Up As a Debate on Judicial Independence

A week after President Trump nominated him to serve on the Supreme Court, federal appeals court Judge Neil Gorsuch is emerging as the central figure in a debate over the independence of the federal judiciary.

Pressed in private interviews with senators for his views on Trump’s repeated rhetorical attacks on judges, Gorsuch is said to have called the President’s comments “disheartening” and “demoralizing.” Former Sen. Kelly Ayotte, who has been introducing Gorsuch to her former colleagues at the Capitol, confirmed the judge’s remarks, though she insists Gorsuch was referring to any attack on judges, not specifically to Trump’s attacks.

Republicans argue that Gorsuch’s remarks should reassure Americans that while nominated by Trump, the judge will think and act independently if confirmed for the high court. But Senate Democratic Leader Chuck Schumer says Gorsuch must declare his independence openly, not just in private conferences with senators.

Trump “has questioned the credibility of a Republican-appointed judge who dared rule against his legally dubious executive order and he has tested the bounds of our Constitution in the first days of his presidency like no other occupant of this office,” Schumer said Tuesday. He added that “the bar for a Supreme Court nominee to prove they can be independent has never never been higher.”

How Trump will react to this is unknown. The President’s repeated attacks on judges have sparked suggestions that he’s trying to intimidate what is supposed to be an independent and co-equal branch of government. This week, Trump Tweeted a series of rhetorical shots at the three-judge panel considering a lawsuit challenging his executive order blocking travel to the U.S. from seven mostly-Muslim countries. And Trump has never retreated from his suggestion last year that because of his plan to build a wall at the Mexican border, a Mexican-American judge should not be hearing a lawsuit brought by former students at the now-defunct Trump University.

But a Trump attack on Gorsuch, whom the President praised effusively in announcing the nomination, seems unlikely. Instead, look for more Tweets like the one Trump directed this morning at Sen. Richard Blumenthal, D-CT, who first disclosed Gorsuch’s reaction to Trump’s attacks on the judiciary.

Reporters should ask Blumenthal “about his long-term lie about his brave ‘service,’” a reference to Blumenthal’s false claim as a Senate candidate that he served in the Vietnam War.

Blumenthal was a Marine reservist during the Vietnam conflict but was never deployed to the war zone. He has apologized for misstating his record.

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