Federal Courts and Nominations

Burden of Proof is on Gorsuch

In drafting our Constitution, the Founding Fathers intended the Judiciary to serve as a bulwark against the excessive accumulation of power by the President and Congress. “…[T]here is no liberty if the power of judging is not separated from the legislative and executive powers,” Alexander Hamilton wrote in defense of the third branch of government.

This noble judicial role – as the guardian of liberty – is an essential part of our democracy. In periods of conflict or chaos, this function is indispensable. At a time when the President flouts constitutional values and Congress shrinks from using its powers as a check and balance, the independence of any nominee to the Supreme Court would demand the most rigorous scrutiny. Judge Neil Gorsuch is no exception.

Does Gorsuch have an ironclad commitment to rule only according to the text and values of our founding charter, and not his personal ideological beliefs? Does he read the Constitution not just as it was written in Philadelphia, but also as it has been amended over the centuries to extend “the Blessings of Liberty” to even greater numbers of people in America? Does he look out for the interests of the powerful or the interests of all the people? Most important, will Gorsuch stand up to, and if necessary, resist unconstitutional actions by the man offering him a lifetime position on the Court?

The burden is on Gorsuch to prove that his record provides the right answers to these questions for the American people.

Make no mistake, the rule of law has been strained in the first three weeks of the Trump Administration. The President defied the Constitution’s protections against conflicts of interest on his first day in office, challenged constitutional protections and federal laws with his restrictive ban on Muslim immigrants, persisted in playing fast and loose with the truth, and even questioned the integrity of the judiciary itself. Worse, his attorney general has a record of making racially insensitive comments and appears more likely to prize loyalty to Trump over his  duty to the American people. And, his top aide undermined the President’s Supreme Court nominee by saying the nominee supports the President.

At the same time, House leaders have shown little interest in oversight of the new Administration, much less acting as a check on a president with demonstrated authoritarian tendencies. Recall, the first order of business for House Republicans was to try to gut the ethics office in Congress. Later, a powerful committee chairman threatened the Executive Branch’s ethics office. And before all that, Senate Republicans flouted constitutional values in a display of raw political power, refusing to consider President Obama’s nomination of Chief Judge Merrick Garland to the Supreme Court for nearly a year.

That leaves the courts as the one branch of government with the independence to rein in overreach by the President and Congress. Will the third branch be up to the job in the Trump era? Or will it fall into line behind the political branches?

That remains an open question, as does whether Gorsuch is capable of speaking truth to power. Is he more likely to rule for big business – like the Court he is nominated to join – rather than safeguard individual and consumer rights, as well as regulations that help protect the environment? We must discover the answers to those and other critical questions in coming weeks.

American democracy, James Madison wrote in the Federalist Papers, is not for “the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscure and unpropitious fortune…” Rather, he said, it was for “the great body of the people of the United States.”

Anyone who holds the public trust should embrace that understanding of our political identity, especially Supreme Court Justices who are the final bulwark against unchecked power and violations of the Constitution. At this flashpoint in American history, Judge Gorsuch must be held accountable to Madison’s uniquely American maxim.

More from Federal Courts and Nominations

Federal Courts and Nominations
January 17, 2024

The Leadership Conference on Civil and Human Rights Sign-On Letter Prioritizing Diverse Judges

Dear Senator, On behalf of The Leadership Conference on Civil and Human Rights and the...
Federal Courts and Nominations
July 31, 2023

Liberal justices earn praise for ‘independence’ on Supreme Court, but Thomas truly stands alone, expert says

Fox News
Some democrats compare Justice Clarence Thomas to ‘Uncle Tom’ and house slave in ‘Django Unchained’
By: Elizabeth B. Wydra, By Brianna Herlihy
Federal Courts and Nominations
July 7, 2023

In Her First Term, Justice Ketanji Brown Jackson ‘Came to Play’

The New York Times
From her first week on the Supreme Court bench in October to the final day...
By: Elizabeth B. Wydra, by Adam Liptak
Federal Courts and Nominations
July 8, 2023

The Supreme Court’s continuing march to the right

Major legal rulings that dismantled the use of race in college admissions, undermined protections for...
By: Elizabeth B. Wydra, by Tierney Sneed
Federal Courts and Nominations
June 25, 2023

Federal judge defends Clarence Thomas in new book, rejects ‘pot shots’ at Supreme Court

A federal appeals court judge previously on short lists for the Supreme Court is taking the rare...
By: Elizabeth B. Wydra
Federal Courts and Nominations
May 1, 2023

Supreme Court, done with arguments, turns to decisions

Roll Call
The justices have released opinions at a slow rate this term, and many of the...
By: Brianne J. Gorod, By Michael Macagnone