Supreme Court nominee Judge Neil Gorsuch, right, walks down the hallway inside the Russell Senate Office Building to meet with Senator Jeff Flake (R-AZ) on Wednesday, February 8. Photo: Diego M. Radzinschi/ALM.
U.S. Supreme Court nominee Neil Gorsuch may have helped cement his chances for confirmation Wednesday night by telling senators that President Donald Trump’s critical tweets of federal judges were “disheartening” and “demoralizing.”
Gorsuch’s comments could have the effect of telegraphing to the legal establishment and to the Supreme Court itself that he embraces the importance of judicial independence. An unwritten rule in Washington discourages personal attacks on federal judges by presidents as a threat to the judiciary’s role in checking executive branch overreach.
“Judge Gorsuch’s comments appropriately reflect the utter disregard President Trump has shown for the judiciary in just three weeks,” said Neal Katyal of Hogan Lovells, a former acting solicitor general in the Obama administration.
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Harvard Law School professor Laurence Tribe also said Wednesday night, “If Judge Gorsuch said what Sen. Blumenthal says he did, then he of course said exactly what any decent judge or public official ought to say and believe. I trust he said it not as a stratagem for confirmation but as an expression of his views.”
According to CNN, Sen. Richard Blumenthal, D-Connecticut, said of Gorsuch, “He said very specifically that [the remarks] were demoralizing and disheartening and he characterized them very specifically that way. I said they were more than disheartening and I said to him that he has an obligation to make his views clear to the American people, so they understand how abhorrent or unacceptable President Trump’s attacks on the judiciary are.”
White House officials confirmed Gorsuch’s comments. Blumenthal said he asked if Gorsuch would make a comment publicly, but he declined. Gorsuch visited with several Democratic senators on Wednesday in preparation for his upcoming confirmation hearing.
Trump has faced mounting criticism for his repeated comments about the judges evaluating the legality of his recent executive order on immigration. He labeled U.S. District Judge James Robart of the Western District of Washington a “so-called judge” after Robart on Feb. 3 temporarily blocked enforcement of the order and said that if a terrorist attack occurs, Robart should be blamed.
Trump also said he watched Tuesday night as a panel of the U.S. Court of Appeals for the Ninth Circuit questioned Justice Department and Washington state lawyers about the travel ban. He called the judges “disgraceful” and incapable of understanding concepts that “a bad high school student would understand.”
American Bar Association president Linda Klein on Monday called personal attacks on judges “attacks on our Constitution” and warned of the importance of an independent judiciary free from political pressure. “There are no ‘so-called judges’ in America,” she said. “There are simply judges—fair and impartial. And we must keep it that way.”
Wade Henderson, president of the Leadership Conference on Civil and Human Rights, said it was necessary for Gorsuch to distance himself from Trump’s remarks. “Regardless of how this case is resolved, our courts must be fair and independent,” Henderson said. “The burden is on Gorsuch to prove that he would uphold the independence of the court and not be a rubber stamp for the president who appointed him.”
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