Neil Gorsuch

Trump's SCOTUS Nominee Is No Rubber Stamp

Unlike the president, Neil Gorsuch understands the role of an independent judiciary.


Donald Trump's Twitter temper tantrum over the legal challenge to his immigration order suggests he does not appreciate the role of an independent judiciary. Fortunately, Trump's lack of interest in such matters has given us a Supreme Court nominee who takes that role seriously and can be expected to resist presidential power grabs.

Last Friday, James Robart, a federal judge in Seattle, issued a temporary restraining order that blocked enforcement of Trump's 90-day ban on travelers from seven Muslim-majority countries and 120-day suspension of the U.S. Refugee Admissions Program. The next morning, Trump slammed Robart on Twitter: "The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!"

Trump followed that up on Sunday with a tweet that castigated Robart for exposing Americans to the risk of a terrorist attack: "Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!"

It is hardly surprising that a president would disagree with a ruling that stops him from doing what he wants to do. But by condemning a "so-called judge" and the "court system" for daring to frustrate his will, Trump cast doubt on the judicial branch's authority to do what it is supposed to do: check the other branches of government when they violate the law.

Alarmed by a president who sounds like a tin-pot dictator, Trump's critics understandably worried that his choice to replace the late Supreme Court Justice Antonin Scalia would be someone with authoritarian instincts who would bend over backward to accommodate the president's agenda. But judging from his record on the U.S. Court of Appeals for the 10th Circuit, Neil Gorsuch is not that guy.

The same progressives who claim Gorsuch would be a "rubber stamp" for Trump are troubled by his criticism of the Chevron doctrine, which says judges should defer to bureaucrats' interpretations of the laws they enforce. But Gorsuch's skepticism of that principle, which is based on his respect for the separation of powers, shows he is not shy about challenging the executive branch when it exceeds its bounds.

Gorsuch's concern about overweening executive power is illustrated by two 2016 opinions in which he rejected the retroactive application of an agency's legal interpretation. One case involved an unauthorized immigrant seeking legalization, the other a home health service provider whose Medicare reimbursements were deemed improper based on regulations announced years after the claims were filed.

Gorsuch, like Scalia, is a critic of vague criminal statutes and a stickler when it comes to requiring that prosecutors prove all the elements of an offense. Both tendencies are apparent in a 2015 opinion that overturned the Analogue Act convictions of two convenience store owners because the government had not proved they knew enough about the psychoactive "incense" they sold to be guilty of violating that law.

Gorsuch's respect for the zone of privacy protected by the Fourth Amendment is also reminiscent of Scalia. Last year, dissenting from a 10th Circuit ruling that allowed police officers to ignore multiple "No Trespassing" signs on the property of a suspected drug dealer, Gorsuch faulted his colleagues for endorsing "an irrevocable right to enter a home's curtilage to conduct a knock and talk."

In another 2016 decision that surely would offend Trump's "law and order" sensibilities, Gorsuch sided with a man convicted of possessing child pornography. His majority opinion agreed that the National Center for Missing and Exploited Children qualifies as a governmental actor under the Fourth Amendment, meaning its warrantless search of the defendant's email was presumptively unconstitutional.

Why would Trump pick a Supreme Court justice with the backbone to oppose his excesses? By most accounts, he farmed out the selection process to the Federalist Society and the Heritage Foundation as a sop to conservatives. Perhaps he did not realize that a conservative might try to conserve the Constitution.

© Copyright 2017 by Creators Syndicate Inc.

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  1. Bad example to use the obvious overreach of judge Robart.

    His order doesn’t even give a legal justification – just that it hurts The Immigrants in the feelz.

    It’s absurd.

  2. Alarmed by a president who sounds like a tin-pot dictator,….

    Obama used Twitter to voice problems with other Branches of government.
    It was different for Obama’s Tweets about other Branches of Gov

    1. BOOOOOOSSSSSSHHHHH did it first.

    2. It’s kind of funny that Reason has adopted the melodramatic phrasing of the Left. Well, more sad than funny.

      Hint: tinpot dictators do way more than criticize judges on Twitter.

    3. There at least was a cursory discussion on the decorum a president criticizing the Supreme Court in person at the State of the Union Address after Citizens United.

    4. ‘Will no one rid me of this meddlesome judge?’

      1. Nice.

        Being a churlish cretin, I had to look for the reference. I suppose I could watch Becket to rectify part of my deficiency.

        1. It’s been a long time since I watched it, but IIRC it was pretty good.

  3. “The same progressives who claim Gorsuch would be a “rubber stamp” for Trump”

    Oh, the irony. Exactly what progressives want IS a rubber stamp. But it’s nice to see that they finally recognize the Constitution as a legitimate thing.

    1. But it’s nice to see that they finally recognize the Constitution as a legitimate thing.

      I agree, Hyp. It is quite refreshing. Unfortunately, I think soon after the Democratic Party has a super majority and/or has their own members in the White House the Constitution and Bill of Rights it will likely be viewed as outmoded and written predominately by Anglophiles who were slave owners.

      1. Of course. I’m also enjoying their latest talking point.

        Leftist 1: “Say he’s a racist!”

        Leftist 2: “I did, but it’s not working, we used it too much!”

        Leftist 1: “Say he’s unqualified!”

        Leftist 2: “What does that mean?”

        Leftist 1: “No one knows, just say it!”

  4. Perhaps he did not realize that a conservative might try to conserve the Constitution.

    Not being one himself, how would he know? But being a real estate mogul, you’d think he would know enough to keep an eye on his subcontractors.

  5. This “threatening the separation of powers” line is bullshit.

    When Congress criticizes the president and says he should do his job differently, or that he is endangering national security with some policy, is that a threat to the separation of powers?

    When the president says Congress needs to pass a certain law to preserve national security, is that a threat to the separation of powers?

    Why is the judiciary alone supposed to be immune from criticism and pleading? They hold their positions for life, with no possibility of losing benefits or protection. They are far freer to ignore the other branches than the political branches are. The president has to worry that congressional criticism could endanger his keeping his job, and vice versa.

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  7. Why people don’t trust the media, example number 4 billion:

    This morning’s today show featured a segment about the Gorsuch nomination. The title bar at the bottom the entire time said “Concerns over Nominee”. They paraded out a bunch of team D folks to tell us of the apocalypse that is to follow. I didn’t listen to all of them, but what I didn’t hear in the minute or so that I gave them was any actual concerns over the nominee. It was more about how they were going to fight his nomination. Because women. Because minorities. Because important.

    Now, they announced very loudly that they were going to oppose any nominee and fight as hard as they could to defeat any nominee. Shouldn’t that have been the lead to any story about their opposition? Shouldn’t that have been the first question to folks who announced their opposition before they even knew who they were opposing?

    No… we get a big banner saying that there are questions….. serious questions about this guy.

    I’m almost surprised that they didn’t put “Child molester?” on the chyron.

    1. The fairly recent tactic of just repeating something without explaining it or going into details is infuriating.


      ‘How did they do that? What exactly did they do?’


      ‘Did they use the Internet to electronically break into voting machines? What did they actually do?’


      1. Not really recent. Recall Orwell satired it with the “four legs good, two legs bad” refrain of the sheep, primarily used to drown out any debate, in Animal Farm.

  8. The Democrat leadership doesn’t care about principles. They just want a scalp on their wall to show the donors.

    Who doubts that this confirmation will be filibustered?

    If someone else had been rejected at the Democrats’ hands, they might let this one slide. They don’t want to be seen as being obstructionists for obstructionist’s sake. Ironically, making it so that only Supreme Court confirmations can be filibustered may have guaranteed that every Supreme Court confirmation will be filibustered.

    1. To be fair, the GOP refused to even consider Obama’s nominee for nearly a year. I really don’t think they have much ground to complain about obstruction.

      1. How about this: A bad or unreliable judge *should* be obstructed, and a good judge *shouldn’t* be obstructed.

        There’s a principle worth upholding.

        1. Well, that and the tit-for-tat. Dems have done exactly this to lame duck Republican presidents more than once. So recently that the exact same players were involved and went on TV explaining that it was absolutely imperative that they do so, only to go back on TV 8 years later and explain that it was flamingly racist and partisan to block a lame-duck president’s nominee.

          It really is surprising that video of Chuck Shumer taking the partisan line on opposite sides of the same issue don’t get more play and gain more traction. Guys like him, Biden, Pelosi, etc. have been shaking-with-rage outraged on both sides of several issues, depending on the parties involved. Why does anyone ever take them seriously on anything they say?

          1. Dems have done exactly this to lame duck Republican presidents more than once.

            Not for a SCOTUS justice. You have to go back to before the Civil War to find an instance of the Senate running out the clock on a president’s term with a SCOTUS nomination, and that was over a somewhat legitimate dispute about whether an “acting president” could make nominations.

            Nobody questioned whether Obama was duly elected in 2012 — the GOP just decided they didn’t want him putting anybody else on the court. This decision was made before Obama even nominated anybody, remember.

        2. I wasn’t trying to be principled about this–or even really saying that there is some greater principle involved when the Republicans do this.

          I was commenting on the rules and the strategies and the advantages and disadvantages of those rules.

          Limiting the filibuster to only Supreme Court confirmations probably means that Supreme Court nominations are more likely to be filibustered. If that’s bad for the country, they should consider opening the other confirmation hearings back up for filibuster again.

          Why shouldn’t they be allowed to filibuster the Attorney General?

          That rule was a short-sighted ploy by Democrats to stifle dissent from the Republican minority at the time, wasn’t it?

          P.S. But tere is something to the suggestion that progressives, specifically, will throw just about anything under the but in order to get what they want at the moment. That’s sort of their whole modus operendi, and it often involves selling the future short for today’s victory.

          1. That rule was a short-sighted ploy by Democrats to stifle dissent from the Republican minority at the time, wasn’t it?

            It was used to pack the courts with Obama appointees before the Dems lost the Senate in 2014. So actually, very long-sighted.

        3. Except it’s not really a principle, since people disagree on which judges are good and bad.

          1. The number one question for any candidate … will you rule on the basis of the law as written and as it was intended or do you believe in legislating from the bench?

            If the people don’t like a previously written law, it can be repealed, replaced, or amended, but up to the point where it is, a judge has no business ruling in any other way.

            1. The answer always is yes. Duh!

      2. That bet played out well for the Republicans.

        They might have been saddled with a Hillary appointee.

        Who thought Trump might actually win?

        1. Just because you won doesn’t mean you made good decisions. Trump’s “victory” was entirely due to Hillary’s one-car wreck of a campaign, and being extremely lucky winning by \lt 1% in three states.

          Note that the GOP lost seats in the Senate, partially because of their stalling of Obama’s nominee.

    2. No, because the R’s will just go nuclear on the SCOTUS filibuster just as the D’s already did on all other confirmations. I do not believe the R’s really want to do it, and think they actually put a reasonable judge forward to avoid it, but nuclear option is squarely on the table. I do really wish they would have given Merrick his day, and then immediately voted him down, and then send their nomination. I believe optics would have been slightly better for the R’s.

  9. “by condemning a “so-called judge” and the “court system” for daring to frustrate his will, Trump cast doubt on the judicial branch’s authority to do what it is supposed to do: check the other branches of government when they violate the law.”

    Since Presidents have broad statutory power to exclude foreigners he believes to be risky to the national security, and since most foreigners have no constitutionally-significant ties to the U.S., maybe Trump believes the *courts* are the ones endangering the separation of powers by tying the President’s hands here?

    “Why would Trump pick a Supreme Court justice with the backbone to oppose his excesses? By most accounts, he farmed out the selection process to the Federalist Society and the Heritage Foundation as a sop to conservatives. Perhaps he did not realize that a conservative might try to conserve the Constitution.”

    Perhaps, though not himself a conservative, Trump realizes that he has to do at least *something* to reward his conservative supporters, and having a constitutionalist Justice on the Supreme Court would be a very important something.

    1. From the screeching of the left and Reason (though I fear I may be repeating myself at this point) you would think Trump sent his goons into Robart’s courtroom, where they stuffed him in a drawstring bag and threw him in prison.

      Let’s not lose ALL sense of proportions here — Trump criticized the judge in a tweet. That’s way short of tinpot dictator status or “threatening the separation of powers”.

      1. Exactly. Besides Obama was worse. For comments his pastor made in a church

  10. Nominee Gorsuch is not. Heaven forbid.

    Justice Gorsuch will be. After he clinches a lifetime appointment

  11. Is it simply impossible to discuss any topic without taking a swipe at Trump? Trump makes a good nomination of an independent jurist, yet still Sullum feels the need to claim Trump does not appreciate an independent judiciary.

    Appreciating an independent judiciary does not mean that the executive shall not criticize or even fight against that judiciary when he thinks it is appropriate. The President’s oath to protect and defend the Constitution is not secondary to federal judges’ oaths. When he thinks they are wrong, it’s perfectly appropriate for him to say so in whatever manner he chooses.

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