The Sessions Department of Justice is not developing a strong track record when it comes to presenting facts fairly and honestly. If it continues on this course, it will likely undermine its credibility with the judges whom it is trying to persuade. And that’s as it should be, because facts matter, whether this Administration realizes it or not.
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Articles & Commentary
The Constitution’s promise of religious freedom is neither an accident of history nor a footnote. Trump’s anti-Muslim travel and refugee ban defies this founding wisdom.
If confirmed, would a Justice Gorsuch be yet another reliable vote for corporate interests at the Supreme Court? Americans have cause to wonder. After all, that's clearly what the business community is expecting.
In the days ahead, there will likely be many questions raised about this GSA decision, such as why it was made by the contracting officer with a long relationship with the Trump Organization (rather than by a higher level officer) and why benefits delayed don’t qualify as a “benefit” under the lease. But there’s one very important question that no one should forget: does this decision, which directly benefits the President, violate the Domestic Emoluments Clause?
It's not difficult to imagine the various ways in which the federal government may end up paying Trump's businesses. In fact, it's already happening.
Supreme Court Justices are the final bulwark against unchecked power and violations of the Constitution. At this flashpoint in American history, the Senate — including Senators McCaskill and Blunt — must strictly measure Donald Trump and Neil Gorsuch against Hamilton’s and Madison’s founding ideals, as well as the hard-won rights protected by the text, history, and structure of the whole Constitution.
As we learned from the Bork nomination, there’s nothing politicized or inappropriate about such scrutiny; to the contrary, a failure by the Senate to engage in such an examination as to any Supreme Court nominee could have profoundly harmful consequences.
When Judge Gorsuch appears to testify before the Senate Judiciary Committee this week, he will have a heavy burden to meet: he cannot simply call himself an originalist. Instead, he must demonstrate that he truly is one—and that his brand of originalism respects the whole Constitution, and that he will follow it wherever it leads. He must demonstrate his fidelity to the Second Founding Amendments that protect fundamental rights and ensure equal dignity under the law for all persons. And if he doesn’t, senators on the Judiciary Committee ought to ask him why.
One rising group of liberal originalist lawyers, the Constitutional Accountability Center, where I serve on the board of directors, has been particularly effective in bringing liberal originalist scholarship to judicial attention. This month, Justice Anthony M. Kennedy and four liberal colleagues strengthened rules against racial animus in jury deliberations. Justice Kennedy’s opinion for the court squarely relied on a C.A.C. amicus brief and the historical scholarship it showcased, by James Forman Jr., a professor at Yale Law School.
As we’re certain to hear during this week’s Senate Judiciary Committee confirmation hearing, conservatives insist that Judge Neil Gorsuch of the Denver-based 10th Circuit should be confirmed because he is an originalist who will decide cases by following the Constitution’s text and history. But a review of his record — both his opinions and his nonjudicial writings — suggests that he is a selective originalist.