As the Senate considers his nomination to the U.S. Supreme Court, Neil Gorsuch owes it to the American people to stand up tall for judicial independence. Both to reassure an uneasy public, and for his own sake, Mr. Gorsuch should be unequivocal in his support of this foundational principle.
Alexander Hamilton explained in the Federalist Papers that the "complete independence of the courts of justice is peculiarly essential" in our system of government. Invoking Montesquieu's admonition that "there is no liberty, if the power of judging be not separated from the legislative and executive powers," Hamilton described two key hallmarks of an independent judiciary, both of which are enshrined in Article III of the Constitution: lifetime tenure during periods of "good behaviour," and a fixed salary that cannot be decreased while the judge is in office.
Over more than two centuries, our judicial system has developed into a model for the rest of the world, and even though public confidence in the judicial branch has been waning in recent years, Americans still have more faith in the judiciary than in either of the other branches of government. In light of Donald Trump's sustained attacks on the federal courts, however, confidence in the judicial branch could erode further, and, more importantly, the bedrock principle of judicial independence could be in peril.
Earlier this month, at an American Bar Association conference in Miami, Barack Obama's last White House counsel, Neil Eggleston, told the audience that even though Mr. Obama vigorously disagreed with the decision of a federal judge in Texas to halt an important aspect of his immigration plan, the president never would have thought to personally attack the judge himself.
That type of restraint is what we have come to expect from our leaders, even in cases that involve the most contentious political issues. When Mr. Obama criticized the Supreme Court's decision in Citizen United during his 2010 State of the Union address, to significant controversy, he did not seek to impugn the character of the justices themselves.
Mr. Trump does things differently. When a federal judge in San Diego last year declined to dismiss a lawsuit by former students of Trump University who claimed they had been defrauded by Mr. Trump and others, Mr. Trump lashed out at the judge, calling him a "hater of Donald Trump" and suggesting repeatedly that the judge's Mexican heritage influenced his handling of the case. Last month, after a federal judge in Seattle ruled against Mr. Trump's first immigration ban, the president again went on the attack, calling the George W. Bush appointee a "so-called judge" and labeling his ruling "ridiculous."
That attack came, ironically, just days after Mr. Trump had made his first nomination — of Mr. Gorsuch — to the nation's highest court. Mr. Gorsuch's reaction was muted. He reportedly told Sen. Richard Blumenthal in a private meeting that he found Mr. Trump's comments "disheartening" and "demoralizing," but Trump aides clarified soon after that Mr. Gorsuch was not criticizing the president.
When three appellate judges later unanimously upheld the Seattle judge's ruling on the immigration ban, Mr. Trump called their decision "disgraceful." Mr. Gorsuch said nothing. Last week, as judges in Hawaii and Maryland stopped Mr. Trump's revised immigration ban from taking effect, Mr. Trump unleashed another tirade. Mr. Gorsuch was silent.
Given Mr. Trump's mercurial nature, it is perhaps understandable that Mr. Gorsuch would not want to poke the man who nominated him; and so far at his confirmation hearing, Mr. Gorsuch has employed a light touch, repeating his earlier private criticism, noting that "no man is above the law," and saying that he "would have walked out" of his interview if he had been asked to overturn Roe v. Wade.
But there is a great principle at stake here, and while the spotlight is on Mr. Gorsuch, he can and should take a stronger stand. Mr. Trump's attacks represent a threat to one of the most important concepts in our system of government — what Hamilton called an "essential safeguard." If Mr. Gorsuch wants to show the American people what type of leader he can be, he will stand up for judicial independence in the face of this ongoing assault. Mr. Gorsuch need not criticize Mr. Trump personally to make the point that personal attacks on federal judges exercising their constitutional responsibility are inappropriate and damaging to the judicial branch as a whole.
Mr. Gorsuch should be categorical in his support of the "complete independence" of the courts because the public needs to be reassured that the person Mr. Trump nominated is rock solid when it comes to this principle. Mr. Gorsuch should also do so for the sake of his long-term reputation. Being "Mr. Trump's pick" for the Supreme Court is a dubious honor. But if he establishes his independence at the outset, Mr. Gorsuch will show himself to be worthy of the lifetime seat.
Daniel Suleiman, a lawyer in private practice in Washington, D.C., was deputy chief of staff of the criminal division in the U.S. Department of Justice from 2012-2013. He can be reached at DSuleiman@cov.com.