Gorsuch ‘Critical’ To Trump Resistance? Five Dem Concerns

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By Kimberly Strawbridge Robinson

“The independence and integrity of the judiciary is in my bones,” U.S. Supreme Court nominee Neil Gorsuch told senators during his confirmation hearing. The statement came in response to tough questioning from Democrats regarding his independence from President Donald Trump.

Minority Leader Chuck Schumer (D-N.Y.) has already said that he’ll vote against Gorsuch and urged his colleagues to mount a filibuster to block the nomination. Though a number of Democrats have agreed, others are still weighing their options.

Sen. Richard Blumenthal (D-Conn.) said during the hearing that the “possibility of the Supreme Court needing to enforce a subpoena against the President is no longer idle speculation.” He pointed the FBI director’s revelation that his agency is investigating potential ties between Trump’s associates and Russian meddling in the 2016 election.

“So, the independence of the judiciary is more important than ever, and your defense of it is critical,” Blumenthal said, echoing the concerns of many Senate Democrats.

Here are five moments from the confirmation hearing involving judicial independence that might be on senators’ minds as they struggle with whether to vote against Gorsuch.

1. The Elephant in the Room

When Trump personally attacked judges, Gorsuch was “disheartened” and “demoralized,” Gorsuch told Blumenthal during questioning ... sort of.

Blumenthal got straight to what he called “the elephant in the room” at his first opportunity to question the nominee: recent personal attacks on judges by the president.

Blumenthal specifically referenced three tweets by the President, including one calling a federal judge a “ so-called judge” after ruling against the administration and temporarily halting its controversial “travel ban.”

Gorsuch repeatedly said he couldn’t comment on any particular situation or “get involved in politics.”

But he said he’s disheartened and demoralized when “anyone” attacks the motives or integrity of federal judges.

“Anyone including the president?” Blumenthal asked.

“Anyone is anyone,” Gorsuch responded, saying that that’s as far as ethics would allow him to answer.

He added, at Blumenthal’s prompting, that the ultimate test of the rule of law is if the government can lose in its own courts and still accept the judgment.

But Gorsuch’s measured response may not be enough to convince Democrats he’s up to the task of standing up to the commander-in-chief.

2. No Man Above the Law

Speaking of the travel ban, Sen. Patrick Leahy (D-Vt.) asked Gorsuch whether the First Amendment allowed a “religious litmus test” for immigration to the U.S.

Although Leahy said he wasn’t talking about the president’s travel ban, which temporarily bars entry for individuals from certain Muslim-majority countries, the question was thinly veiled.

Indeed, Gorsuch responded that he couldn’t respond because there was pending litigation regarding the legality of the ban that could come before the Supreme Court.

It would be a violation of separation of powers for a Supreme Court nominee to make promises on how he or she would vote if confirmed to the high court bench, Gorsuch said.

So Leahy took a different tack. Are the president’s national security determinations reviewable by the judicial branch, he asked.

“No man is above the law,” Gorsuch responded.

The relevant law to review executive determinations is Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), Gorsuch said. That decision is often cited as the basis for granting the president wide-ranging authority in matters where Congress has ceded ground to the executive.

That exchange may indicate that Gorsuch would be a vote to uphold the president’s travel ban, which could sink Gorsuch’s chances with Democrats.

3. Emolu-huh?

Undeterred, Leahy went back to another issue that has plagued the Trump administration: the emoluments clause.

If you don’t know what that is, don’t fret. It was in a “rather dusty corner” until recently, Gorsuch said.

The provision, which prohibits officers of the U.S. from accepting gifts or “emoluments” from foreign governments, is the subject of lawsuits challenging Trump’s business connections with foreign governments.

But Gorsuch was hesitant to respond to Leahy’s questions, because one of those cases might come before the Supreme Court someday.

The hesitance irked Leahy.

Why was Gorsuch so reluctant to answer about the emoluments clause when he’d discussed other constitutional provisions—like the Fourth and Fifth Amendment—during the hearing, Leahy wondered aloud.

With Trump saying Gorsuch’s nomination could change potentially 40 years of law, Gorsuch could be a kind of “Trojan Horse,” Leahy said.

So Democratic senators need to know how much Gorsuch agrees with the president, he said.

Leahy later cited Gorsuch’s hesitance to answer as a reason to filibuster his nomination.

4. Waterboarding = Impeachment

Democrats weren’t the only ones pressing Gorsuch on his independence from the president.

“In recent months I’ve heard that ‘now more than ever’ we need a Justice who is independent, and who respects the separation of powers,” Sen. Chuck Grassley (R-Iowa) said in his opening statement.

“Some of my colleagues seem to have rediscovered an appreciation for the need to confine each branch of government to its proper sphere,” he said. “I don’t question the sincerity of those concerns, but some of us have been alarmed by executive overreach, and the threat it poses to the separation of powers, for quite some time now.”

Indeed, Sen. Lindsey Graham (R-S.C.) took time from his questioning to warn the president off his claims to re-institute waterboarding.

The Detainee Treatment Act prohibits waterboarding, Gorsuch agreed.

“In case President Trump is watching,” Graham said, “if you start waterboarding people, you may get impeached.”

But Democrats, led by Sen. Dianne Feinstein (D-Calif.), were concerned about Gorsuch’s role in defending torture when he served as the principal deputy associate attorney general during the George W. Bush administration.

Feinstein pressed Gorsuch on his suggestion—made more than a decade ago—that torture yielded valuable information.

Feinstein seemed unconvinced when Gorsuch responded that he was merely representing the interests of his client—the federal government—as any lawyer would do.

She promised to submit more questions on that topic, suggesting that how Gorsuch responds could determine her vote.

5. Real World Challenges

Finally, Gorsuch is an outspoken critic of the Chevron doctrine, the idea that courts defer to administrative agencies’ reasonable interpretations of statutes they administer.

Gorsuch wrote an opinion challenging that long-standing legal doctrine while on the U.S. Court of Appeals for the Tenth Circuit, Feinstein noted.

But the doctrine “has been fundamental to how our government addresses real world challenges in our country and has been in place for decades,” she said.

“In fact, Congress relies on agency experts to write the specific rules, regulations, guidelines and procedures necessary to carry out laws we enact,” like those protecting “our environment from pollution,” our “food supply, our water, our medicines,” and even our financial rules to “combat the rampant abuse that led to our country’s worst financial crisis since the Great Depression,” Feinstein said.

Gorsuch’s position “would dramatically affect how laws passed by Congress can be properly carried out,” she said.

But pushing back on deference to agencies could be attractive to some Democrats as the Trump era begins.

These issues will likely be weighing on the minds of Democratic senators ahead of the anticipated up-or-down vote on Gorsuch April 7.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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