Bench Memos

Law & the Courts

Inappropriate Political Questions of Judge Gorsuch

As we prepare for the latest Supreme Court confirmation hearing process, it seems appropriate to recall these important lines of inquiry from recent confirmation hearings: 

Judge Ginsburg, the president who nominated you has been accused of carrying on a 12-year affair with Gennifer Flowers and in an 60-minutes interview admitted he had caused ‘pain in his marriage.’ How do you square your role as a defender of women’s rights with the many reports of his infidelity?”

“Judge Breyer, earlier this year President Clinton was sued for sexual harassment by Paula Jones and has been engaged in a smear campaign against his accuser.  I want to give you the opportunity to distance yourself from this scandal-ridden administration – would you like to comment?”

General Kagan, President Obama ignited controversy at this year’s State of the Union address by publicly taking the Supreme Court to task for a decision he disagreed with.  Do you feel it’s appropriate for a sitting President to use the authority of his office to criticize decisions with which he disagrees?”

If you don’t have a vivid recollection of any of those questions, it’s no surprise.  Those types of explorations of a Supreme Court nominee’s commentary on political questions and debates have never actually come up because they are entirely inappropriate during the confirmation process. Many presidents have said and done controversial things in the past, but never have their judicial nominees been called to account for them.  

Until now.

Senate Democrats appear ready to take the judicial confirmation process to a new low in this area. Senator Schumer has already criticized Judge Gorsuch for not responding to questions they both know he cannot ethically comment on as a sitting federal judge (as Ed Whelan has discussed).  And Senators Klobuchar, Leahy, and Schumer have tested out the idea that Gorsuch’s commitment to judicial independence should have to meet an artificially high standard.

But this criticism of Gorsuch’s independence is part of a long line of attacks that don’t get traction against the judge because they are completely at odds with his record.  Democratic efforts to cherry-pick Gorsuch’s record to find cases that went against sympathetic parties were roundly denounced as misguided, misleading, and inconsistent with the judge’s full record on the bench.  It’s profoundly ironic that the same people who lauded Merrick Garland’s nomination – a judge whose jurisprudence was characterized by exceptional deference to the executive branch – are now concerned that Gorsuch is insufficiently independent, when his record on the bench shows him to be an outspoken critic of deference to the executive branch and a stickler for maintaining the constitutional limits on government power.  They should be applauding Gorsuch’s approach to presidential power, not trying to trap him in gotcha questions no judge should be expected to entertain.

But even if these attacks were not so silly in light of Gorsuch’s own record, they should be universally rejected as inappropriate for a judicial hearing.  A sitting judge should not be asked to wade into the political swamp.  The focus of this week’s hearings should be his record, and he shouldn’t be asked to weigh in on criticism of President Trump any more than he should be asked his opinion of Obama’s thinly-veiled threats against the Court or Bill Clinton’s sexual exploitation of Monica Lewinsky and his subsequent character assassination of the intern he seduced. 

I hope Judge Gorsuch will maintain the dignity of his judicial office by passing on this line of questioning, even if some Senators decide to degrade the dignity of their office by engaging in it.

 

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