Trump’s authoritarian tendencies demand this approach, and the stakes are extraordinarily high. Trump’s attacks on the judiciary, for instance, are so far outside the mainstream of normal presidential behavior that it would be malpractice for Democrats to fail to make this a subplot. In other words, the Democratic opposition to Gorsuch must be based on far more than his judicial philosophy and history.
More is at stake here than Gorsuch’s allegiance to the ideology of the Heritage Foundation or the Federalist Society. One would expect any Republican president to nominate an anti-abortion, pro-business, “originalist” jurist to the Supreme Court, and Democrats are right to question Gorsuch on these and many other aspects of his judicial philosophy. But Trump is not an ideological conservative who has given a great deal of thought to constitutional originalism.
Rather, Trump views the judiciary as a tool for his own financial and political ends. And that’s why the politics around the Gorsuch nomination are new and dangerous.
Trump has a long history of assailing federal judges, first using his bully pulpit as a candidate and now using his power as president, to subvert the separation of powers that undergird our democracy. It is clear from his public statements that the president wants a judiciary that doesn’t question him, his motives, his edicts or his power.
Some Democrats today did make these issues front and center. For instance, as Sen. Patrick J. Leahy (D-Vt.) told Gorsuch this morning, “I need to know that you can be an independent check and balance on the administration that has nominated you, and on any administration that follows it.”
And Sen. Richard Blumenthal (D-Conn.) laid a robust groundwork for compelling Gorsuch to be explicit in stating his independence not only from Trump’s political manipulations, but also from his assault on the separation of powers. Blumenthal caustically called out Trump’s “campaign of vicious and relentless attacks on the credibility and capacity of our judiciary to serve as a check on lawless executive action,” adding that the president “has shaken the foundation of respect for judicial rulings.” Without respect for judges, and their independence, Blumenthal went on, “our democracy cannot function.”
Blumenthal then pointedly told Gorsuch: “You have a special responsibility here this week, to advocate and defend the independence of our judiciary against those kinds of attacks.” Given the “looming constitutional crisis” arising out of the FBI investigation into Russia’s interference in our election, which we now know is focused on the possibility of collusion between Russia and the Trump campaign, he added, the “independence of the judiciary [is] more important than ever and your defense of it is critical.”
In questioning Gorsuch later this week, Democrats should follow this lead and be explicit and direct, placing Trump’s long string of attacks on the judiciary front and center. As a candidate, Trump vilified the federal judge presiding over the fraud case brought by former students of Trump University, saying he was unable to be impartial because he was (variously, in Trump’s own words) “Spanish,” “Hispanic” and “Mexican.”
Since becoming president, Trump has launched an offensive against the judiciary over rulings blocking his executive orders banning refugees and migrants from Muslim-majority countries. He uses Twitter and campaign speeches to erode one of the very foundations of our democracy — an independent judiciary as a check on executive overreach. These attacks energize his base while undermining the Constitution.
What’s more, Trump dangled nomination promises as a kind of quid pro quo to win over a skeptical — but crucial — Republican voting bloc. Last June, when Trump was struggling to win over the leadership of the religious right, Trump promised approximately a thousand evangelical leaders that he would pick “pro-life” justices, according to audio of his remarks that was leaked to the media. Admitting that he had not been on this side of the issue until very recently, Trump made clear that his primary aim in picking judges was horse-trading for his own electoral benefit.
Trump’s other efforts to undermine our democracy — such as his repeated claims that millions voted illegally in our election, via voter fraud — also deserve an airing out in this context. Those vote-fraud comments suggest a major national crackdown on voting rights might be in the works. And as Ari Berman reports, Gorsuch “could be the deciding vote on whether to weaken the remaining sections of the [Voting Rights Act] and whether to uphold discriminatory voter-ID laws and redistricting plans.” So it is crucial that Gorsuch be compelled to offer his views of Trump’s unfounded claims of widespread voter fraud, as well as his views on the scope of the Voting Rights Act.
Trump’s extensive assaults on our democracy make the Gorsuch hearings unlike any others in recent memory. And just as Senator Blumenthal did today, Democrats should treat them as such.