Supreme Court nominee Judge Neil Gorsuch appearing before the Senate Judiciary Committee told members of the panel that he would not test the winds of politics in his decision on how to rule on a matter before the court. “A good judge doesn’t give a whit about politics or the political implications of his or her decision, (and) decides where the law takes him or her fearlessly.”
Gorsuch, currently a justice on the Tenth Circuit Court of Appeals, in answer to whether he discussed the 1973 landmark abortion case, Roe v. Wade with President Donald Trump, told committee members that the topic did not come up and that if Trump had asked him if he would agree to overturn it, said, “I would have walked out the door.”
The question arose from the fact that during Trump’s speeches on the campaign trail, he told supporters that he would nominate a judge that would side with the pro-life jurists on the court. Gorsuch further remarked that it would be the “beginning of the end” of the independent judiciary if judges were required as a condition of confirmation to indicate how they would rule in future cases.
The line of questioning from Grassley, was tactical, seeking to preempt Democrats on the committee who would seek to imply that Trump had chosen a malleable nominee. It was especially relevant considering blustery and bigoted comments Trump had made last year about a federal court judge in San Diego regarding a lawsuit against Trump involving charges of fraud relating to Trump University.
Trump had publicly attacked Judge Gonzalo Curiel, pointing out that Curiel “happens to be Mexican”. Trump stated at the time that, “It is a disgrace. It is a rigged system … This court system, the judges in this court system, federal court. They ought to look into Judge Curiel because what Judge Curiel is doing is a total disgrace.”
Trump had later made disparaging remarks about the judge on the Ninth Circuit Court, Judge James Robart, that placed an injunction on Trump’s first travel ban order. In February – Gorsuch, in a private meeting with Senator Richard Blumenthal (D-CT) called Trump’s comments “disheartening” and “demoralizing”, a wise bit of candor that positioned him well for today’s hearings.
Gorsuch expressed similar sentiments to other lawmakers at the time, including Senator Ben Sasse (R-NE). “Judge Gorsuch and I actually talked about that,” Sasse said on MSNBC Feb. 9. “And frankly he got pretty passionate about it. I asked him about the ‘so-called judges’ comment because we don’t have’ so-called judges’ or so-called presidents or so-called senators. And this is a guy who kind of welled up with some energy and he said any attack on any of, I think his term to me was brothers or sisters of the robe, is an attack on all judges. And he believes in an independent judiciary.”
Gorsuch added that he views his role as conforming to the traditional role of the independent jurist. “When I became a judge, they gave me a gavel not a rubber stamp,” Gorsuch said, stating additionally that no one, including the president, was “above the law.”
Senator Charles Grassley (R-IA), the Committee chairman, asked Gorsuch “whether you’d have any trouble ruling against a president who appointed you.” In response, Gorsuch told Grassley:
That’s a softball, Mr. Chairman. I have no difficulty ruling against or for any party, other than based on what the law and facts in the particular case require. And I’m heartened by the support I have received from people who recognize that there’s no such thing as a Republican judge or a Democratic judge. We just have judges in this country.
Asked by Grassley to outline his process in deciding an issue before him, Gorsuch responded:
I go through it step by step and keeping an open mind through the entire process as best as I humanly can. And I leave all the other stuff at home, and I make a decision based on the facts and the law. Those are some of the things judicial independence means to me.
Gorsuch went further in providing an example. “People asked [White] what his judicial philosophy was, I’ll give the same answer. I decide cases. It’s a pretty good philosophy for a judge. I listen to the arguments made. I read the briefs that are put to me. I listen to my colleagues carefully and I listen to the lawyers,” he said.
Grassley and other members of the judiciary panel are savvy enough to realize that whether they think they have a conservative jurist or a liberal jurist, that the initial assessment is not sufficient to predict how an associate justice or even a Chief Justice will rule on the Supreme Court.
Judicial independence is a core value deeply embedded in the thinking of this nation’s founders. Alexander Hamilton, writing in the Federalist Papers (No. 78), wrote, “Liberty would have everything to fear from the judiciary’s union with the legislature or the executive.”
One among the chief litany of grievances outlined by the men who signed the Declaration of Independence, was the indictment of King George the Third’s practice of manipulating colonial judges by controlling their tenure and earnings. Blackstone’s commentaries observes that such a subservient relationship meant that “instead of deciding cases according to fundamental principles, judges would likely pronounce …for law, (that) which was most agreeable to the prince of his officers.”