From banning immigrants to insulting foreign leaders to obsessing about crowd size, President Donald Trump hasn’t exactly covered himself in glory during his first weeks in office. But he has done one important thing right: nominating a Supreme Court justice whose independence and temperance could help balance a reckless White House.
For that reason, we encourage Senate Democrats to ask tough questions of Neil Gorsuch, but also to give him a fair hearing. Despite his record of taking some positions that offend liberal sensibilities, Gorsuch is far less radical a jurist than Trump could have selected. And in the tumultuous years to come, Gorsuch could emerge as a thoughtful, stabilizing force.
Gorsuch was educated in the elite enclaves of Columbia, Harvard and Oxford but approaches legal issues with a practical wisdom true to his Colorado roots. As a jurist, he has displayed two particularly promising qualities: a fundamental respect for others and a healthy skepticism about efforts by the other branches of government to bend the Constitution to passing political fancies.
While Trump had set up his announcement of Gorsuch’s nomination as a prime time TV “reveal,” the judge’s bearing changed the tone to one of appropriate gravity. In thanking Trump for “a most solemn assignment,” Gorsuch said, “It is the rule of judges to apply, not alter, the work of the people’s representatives. A judge who likes every outcome he reaches is very likely a bad judge.”
Some might interpret those words as bad news for those — liberal and conservative alike — who hope to change the nation’s laws through court challenges rather than the slow practice of democracy. But coming at a time when a new president is displaying an unprecedented contempt for democratic processes, Gorsuch’s originalist respect for constitutional protections could prove very good news indeed.
We disagree with some elements of Gorsuch’s legal conservatism, mostly notably his decision that the right of religious freedom extends to a private company wanting to deny contraceptive coverage on employee health plans. And it’s likely that in replacing the late Justice Antonin Scalia, he will restore the court to a more reliably conservative majority on many issues.
But Gorsuch’s careful conservatism may not be all bad. Legal experts say that it’s unlikely he would challenge previous — and admirable — court decisions to uphold President Obama’s health care reform and defend the rights of all people to marry. And in his confirmation hearings, Gorsuch will have the opportunity to make his principles clear on the critical issue of executive branch overreach.
This nation is built on a separation of powers, in which the three branches of government — legislative, executive and judicial — act as a check on each other’s excesses. Every president gets frustrated with the other branches of government; that’s a natural and necessary part of the dynamic. But few have displayed the contempt expressed by Trump.
After a federal judge last week suspended Trump’s ill-considered ban on refugees and immigrants, Trump used Twitter to issue a startling condemnation: “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!”
In a New York Times op-ed, legal scholar Eric Posner called on Gorsuch to publicly repudiate that statement. Posner noted that such an utterance risks eroding the separation of powers and might embolden border agents and others who work for Trump to defy court rulings on the immigration ban and who knows what else.
“Trump has made it clear that he regards any judge who thwarts his designs as a personal enemy,” Posner wrote. ” … And this could happen again and again as Trump pushes through his program.”
Thus far, most Republicans have been slow to criticize the president’s ill-considered decisions and pronouncements, likely out of fear of undermining their chances to advance their own agendas.
Gorsuch, 49, must show no such deference. Instead, he should defend a judiciary with which he — as the youngest Supreme Court nominee in a quarter-century — may long be associated. Presidents come and go, but the checks and balances of American government must remain in place. If Gorsuch defends those principles, he will have earned the right to serious consideration.