Federal Courts and Nominations

OP-ED: Neil Gorsuch doesn’t seem to care much about impartiality after all

At his Supreme Court confirmation hearings in March, then-Judge Neil M. Gorsuch spoke to Sen. Richard Blumenthal (D-Conn.) with grave sincerity, saying, “Senator, the independence and integrity of the judiciary is in my bones.” To Sen. Sheldon Whitehouse (D-R.I.), he promised: “I do take seriously impartiality and the appearance of impartiality.”

As the saying goes, however, actions speak louder than words.

Now that Gorsuch has been confirmed to the Supreme Court, his actions are beginning to bring his commitment to integrity and impartiality into sharper focus: It was recently revealed that the justice has agreed to speak to a conservative group at the Trump International Hotel in Washington next month.

As The Post recently reported, this property earned the Trump Organization $2 million in the first four months of 2017, even though the organization had predicted a $2 million loss in that period. The hotel charges $652.98 a night, on average, likely making it the most expensive hotel in the city. Since Trump was elected, the hotel has drawn swarms of lobbyists and foreign delegations hoping to ingratiate themselves with President Trump and his family.

The Trump International Hotel has become a prominent symbol, in the heart of our nation’s capital, of Trump’s success at exploiting his elective office for personal gain. Situated on Pennsylvania Avenue just a few blocks from the White House, it shines like a beacon to those seeking to curry favor with the 45th president.

This hotel’s business is also key to three major lawsuits that have been filed against Trump, alleging that he violated critical anti-corruption provisions in our Constitution. Under the foreign emoluments clause, U.S. government officials — from the president on down — are prohibited from accepting any payments or benefits from foreign governments without the consent of Congress. Furthermore, the Constitution’s domestic emoluments clause specifically forbids the president from accepting any payment, other than his fixed presidential compensation, from federal, state or local governments.

The Founding Fathers took great pains in drafting our Constitution, with the emoluments clauses and other anti-corruption provisions, to ensure that our nation’s elected officials would base their decisions only on what is best for the American people, not their personal bottom line.

Gorsuch selectively refused to answer senators’ questions about issues facing our country during his confirmation hearings, saying that doing so would indicate that he had prejudged those issues. When Sen. Patrick J. Leahy (D-Vt.) pressed him on the foreign emoluments clause, Gorsuch said: “I’m hesitant to discuss any part of the Constitution to the extent were talking about a case [that] is likely to come before a court.”

Let’s be crystal clear: Any of those three separate lawsuits asking federal courts to step in and order Trump to obey the Constitution’s emoluments clauses — including one on behalf of more than 200 members of Congress (represented by my organization, the Constitutional Accountability Center) — could eventually reach the Supreme Court.

Is it possible that Gorsuch is not aware of these lawsuits? Was he not aware that his forthcoming speech would be given at the Trump International Hotel? If he is aware, does his decision to help a conservative organization put money into the pockets of the president who nominated him — by speaking at the profit-generating property so conspicuously at the heart of a profound legal dispute about the meaning of the Constitution’s text — indicate that Gorsuch has prejudged these critical issues? Perhaps he’s already decided that he will have to sit out these cases if they make their way to the Supreme Court. Why else would he see no problem in giving a speech at this hotel?

For one who promised to “take seriously . . . the appearance of impartiality,” it is time for Gorsuch to return to those words. Speaking at the Trump International Hotel does not foster the appearance of impartiality. It does the opposite. Gorsuch should reflect soberly on his decision to speak at his patron’s property, which lies at the center of not one but three cases that could come before him in the months ahead.

Upon such reflection, Gorsuch should withdraw from speaking at any of Trump’s properties and thereby begin to match the volume of his actions as the court’s newest justice with those of his words as Trump’s nominee.


This piece appeared in at least the following additional outlets:

New Bedford (MA) South Coast Today

* Winston-Salem (NC) Journal

* Syracuse (NY) Post-Standard

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