Different Republican Nominee, Same Democratic Dance
If there’s one thing that has always united Democrats, it’s the chance to express outrage and concern over Republican-chosen Supreme Court nominees. Since at least 1987, when Senator Ted Kennedy slandered President Reagan’s highly qualified nominee and begat the verb “to bork,” the selectively principled men and women of the Left have pantomimed panic over every nominee who will apply laws as written. That approach, Congresswoman Nancy Pelosi would have you believe, means they hate clean water, fresh air, happy people, and kittens.
Senator Chuck Schumer, scare-apparent to Mr. Kennedy, recently looked down his reading glasses to declare that no fewer than 60 votes in the Senate should suffice for President Trump’s nominee, Judge Neil Gorsuch, because these days, when Schumer’s party happens to be out of the White House, we must be particularly vigilant to ensure that judges will impede executive overreach. Senator Schumer, along with Senator Dick Blumenthal, even went one step further, using nominee Gorsuch as a prop to settle a political score with President Trump regarding his travel Executive Order. They are now demanding that Judge Gorsuch, in the name of judicial independence, publicly condemn President Trump's Twitter criticisms of the judges hearing the challenge to the Order.
The notion that Mr. Schumer and other Democrats are interested in preserving the judicial independence established in our Constitution is risible. They certainly did not express similar concern when President Obama made public statements clearly intended to influence the outcome of cases before the Supreme Court.“I’m optimistic that the Supreme Court will play it straight when it comes to the interpretation,” he said as the Justices deliberated King v. Burwell–implying that if the Court ruled against them, their decision would be illegitimate. And by now we’ve all been reminded of President Obama’s hectoring of Justices during the State of the Union in 2010, when he misrepresented Citizens United.
The Democrats' hypocrisy aside, there is the simple fact that criticism of judges is not something to fear. The Framers contemplated criticism of Federal judges and provided them with life tenure precisely to ensure that they could go wherever the law takes them without being unduly influenced by criticism or praise. Presidents have often publicly expressed frustration with court rulings. President Lincoln, in his first inaugural address, suggested that the power of the Supreme Court threatened the principle of self-governance. After the Court ruled against one of his New Deal programs, FDR complained that the nation had “been relegated to the horse-and-buggy definition of interstate commerce.” (And there are the many times Thomas Jefferson, smarting from Marbury v. Madison, complained about judicial review in private letters.) Presidents can call judges whatever they like and hurt their feelings however they wish, but they have no power to fire or punish them.
It is also difficult to take Democrats seriously when they express concern over whether Judge Gorsuch will be willing to stand up to President Trump in the event he exceeds his lawful authority. For starters, these are the same people still besotted with President Obama, whose ambition was so excessive that he lost a higher percentage of his cases before the Supreme Court than any modern president.
Moreover, anyone who expresses uncertainty about Judge Gorsuch’s independence has not read his opinions. In Gutierrez-Brizuela v. Lynch (2016), for example, the judge expressed concern that “executive bureaucracies . . . swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that [is] difficult to square with the Constitution of the framers’ design.” And, although his critics may be loath to admit it, Judge Gorsuch’s concurrence in Hobby Lobby Stores, Inc. v. Sebelius, which overturned an Obamacare regulation that closely held corporations must violate their religious beliefs, clearly demonstrates a willingness to fight executive overreach.
The fact is that Democrats are feigning concern both to discredit President Trump for reasons having nothing to do with the Supreme Court nomination, as well as for the same reason they’ve fought conservative appointees for 30 years: they don’t like judges who, like Judge Gorsuch, apply the law as it is written. It is demeaning for Democrats to use Judge Gorsuch as a pawn for discrediting President Trump's policy positions as well as to scare people into thinking that Mr. Trump will be a lawless Executive. The phony and hypocritical invocation of principles that never mattered to them before is the real threat to judicial independence here.
Leonard A. Leo advises President Trump on the Supreme Court and is on leave from his role as Executive Vice President of The Federalist Society.