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A way out for Judge Gorsuch

Op-ed: Here's a resignation letter Judge Gorsuch can use to get out of his Supreme Court nomination.

If Judge Neil Gorsuch gets fed up with President Trump, as any good judge should, I offer this as a model resignation latter to opt out of his Supreme Court nomination:

Dear President Trump,

I have made a decision that has been extremely difficult, but which I feel I cannot avoid. I respectfully ask you to withdraw my nomination to the Supreme Court . For whatever reasons, sir, you have uttered personal attacks against two of my fellow federal judges, Gonzalo Curiel and James Robart. In both cases, your attacks were made in connection with their decisions in cases in which you had a personal interest. Further, you have now insulted and impugned the motives of a panel of my fellow U.S. Court of Appeals judges. These attacks inevitably lead me to conclude that you do not respect the independence and integrity of the judiciary and have not yet fully absorbed the reality that, under the Constitution, you are the head of only the executive branch of the government, and that the other branches are responsible for their own administration. As a businessman with ultimate power over your own enterprises, it may be difficult for you to adjust to a situation in which, while possessing great power, you are not the manager of those employed in the other branches.

This places me, as your nominee, in an untenable position. I foresee being regarded as, in certain respects, your employee. More importantly, because you have acquired the reputation of expecting strict loyalty and obedience, members of the public will view my decisions that are favorable to your interests as having been influenced by such a feeling of obligation. This creates at least the appearance of a conflict of interest. Your extensive business interests, some of which are known and some of which are not, make it quite foreseeable that cases having an impact on those interests, even when your company is not a named party, will come before the Supreme Court. That a member of the court whom you appointed would feel obliged to recuse himself or herself in such cases, which would seriously impinge on the function of the court.

There is also cause for concern arising out of decisions that are disadvantageous to your interests and about which you have strongly held feelings. During the presidential campaign you suggested that opponents of any new gun control measures might take some unspecified Second Amendment related action against your opponent in the event that she became president and sought to impose any gun control measures. This remark could be construed as an acceptance of their doing her harm. While I cannot believe that you intended this, many do. Since she did not become president, the suggestion became moot. However, your remark, taken together with the intensity with which you have already responded to judges whose actions have displeased you, make it easy to imagine future remarks expressing your sense of betrayal by a judge whom you appointed.

Today the carrying of concealed weapons is permitted in many parts of the country. There are segments of the population who could be prompted to extreme measures in the right circumstances, with such individual intentions not easily detected. The prospect of a faithful adherent who might be inclined to interpret remarks like your Second Amendment comment as a green light to fulfill what in his or her mind seems to be your desire is truly frightening. I say this not solely from the perspective of my safety and that of my family's, but from the terrible consequences to the country of even a failed attempt to do harm to an offending judge.

I realize that many of the remarks that trouble me today were made before the time that I accepted your nomination. It has been only after your recent outbursts that I connected these events and reached the conclusion that I must decline this high honor. It is my sincere hope that as you become more accustomed to your still unfamiliar role and to the demands of our constitutional system, you will respond in an appropriate manner to actions of the judiciary and others with whom you may disagree so that future nominees will be able to accept, in good conscience, the honor that you have presented to them.

Sincerely yours,

Neil Gorsuch

Jesse Etelson is a retired administrative law judge for the Federal Labor Relations Authority; his email is jeselson@yahoo.com.

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