Rule of Law

Democrats should use the coming court fight to spotlight Trump’s authoritarianism. Here’s how.

President Trump’s nomination of Colorado appeals court judge Neil Gorsuch to the Supreme Court presents Democrats with an opportunity. They can use the nomination fight to shine a light on Trump’s authoritarian tendencies and serial undermining of our democratic norms, via lines of questioning that probe whether the courts can be counted on to act as a check on those impulses, which are already visibly motivating the Trump presidency.

Gorsuch is being widely hailed by Republicans and conservatives for, among other things, his belief in constitutional originalist philosophy and his rulings on religious liberty. Liberals and Democrats, The Post reports, are blasting him as a “tool of conservative activists who would gut protections for consumers, workers, clean air and water, safe food and medicine and roll back the rights of women and LGBT people.”

All that will get litigated in due time, but another area that hopefully will also get aired out centers on whether our institutions — in this case, the courts — will function as a check on Trump’s excesses.

“Here we do need answers, because we haven’t had a president who has so openly flouted our norms,” Elizabeth Wydra, president of the Constitutional Accountability Center, told me this morning.

There are already widespread fears, including among some center-right writers, that the courts might not be up to the task of reining in Trump. Senators might ask Gorsuch for a general statement of principle here. “I would ask him what the court’s proper reaction would be if a president refused to comply with an order from his court or a lower court,” Wydra says, adding that she would hope to hear a “rousing endorsement of the importance of the judiciary as a check on authoritarian behavior by the elected branches.”

Trump has also been known to insult members of the judiciary, such as when he attacked a judge hearing a challenge to Trump University over his Mexican American heritage. A mischief-making possibility might be to ask Gorsuch for his reaction to that.

Trump’s refusal to divest from his business holdings sets up the possibility for unprecedented conflicts of interest. Trump is already being sued by good government watchdogs who argue that Trump’s holdings, through payments from foreign powers, put him in violation of the Constitution’s emoluments clause, and that the president should be subject to emoluments clause restrictions. Trump’s lawyers argue that the clause doesn’t apply to fair-market value payments such as hotel bills, and others have defended Trump on the grounds that such payments are not to Trump — to the president — but to his businesses.

Here’s another area where the confirmation process could shed needed light via general lines of questioning. “I would ask Gorsuch what he thinks about the scope of the emoluments clause — to whom does he think it applies, and in what context?” Wydra continued. “Does it apply to the president, and does it apply if there is a fair value trade?”

Trump’s bullying and hostility toward the media, and his hints at restrictions on them, raise questions about his respect for the First Amendment and his commitment to freedom of the press, which might come under extreme strain amid more criticism or, worse, a national crisis. Something along these lines might come before the courts. Josh Blackman, a libertarian associate professor at the South Texas College of Law, suggests a focus on Gorsuch’s views of the “actual malice” standard, in which actual malice must be deemed present for a public official to sue a media organization for libel. Blackman says Gorsuch might be asked: “How would you define the ‘actual malice’ standard for the First Amendment?”

Trump’s executive order temporarily banning refugees and migrants from seven Muslim-majority countries, which will be challenged in part on the grounds that its intent is discriminatory, suggests (as do his own campaign vows of direct persecution of Muslims) the possibility of more policies to come targeting Muslims, especially if there is a terrorist attack. Meanwhile, Trump has flatly stated that evangelical Christians will “love” his Supreme Court pick.

“I would straight up ask Gorsuch about Trump’s comment and whether he feels he would be capable of providing fair and equal justice to people of all faiths or no faiths,” Wydra says. On Trump’s executive order, she notes, Gorsuch might be asked: “Do you think the Equal Protection Clause and constitutional protections against establishment of religion apply to individuals seeking to enter the United States who are not citizens?”

There are obviously plenty of other questions, such as in the area of voting rights. Trump’s lies about voter fraud suggest the possibility of major new voter suppression efforts on the national level, so Gorsuch’s constitutional views on this topic, too, will likely be probed. Needless to say, the very fact that so many questions like these need to be posed underscores what a unique and potentially threatening moment we find ourselves in right now.