In drafting our Constitution, the Founding Fathers designed the Judiciary to serve as a bulwark against the excessive accumulation of power by the President and Congress. “There is no liberty if the power of judging is not separated from the legislative and executive powers,” Alexander Hamilton wrote in defense of the third branch of government.
This noble judicial role — as the guardian of liberty, separate from the elected branches — is an essential part of our democracy in the best of times. In periods of conflict or chaos, this function is indispensable. At a time when the president flouts constitutional values and Congress shrinks from using its powers as a check and balance, any nominee to the Supreme Court demands the most rigorous scrutiny.
As he begins his hearings before the Senate Judiciary Committee this week, Judge Neil Gorsuch is no exception.
{mosads}Does Gorsuch have an ironclad commitment to rule according to the words and values enshrined in our Constitution and laws, or will he rule by the litmus tests that Trump and conservatives expect Gorsuch has already passed as a precondition of being nominated?
Some have said that Gorsuch has the potential to be even more conservative than Justices Alito and Thomas, and has been talked about as an “originalist.” But does his originalist fidelity to the Constitution apply to the whole Constitution as amended over time, or only to the parts of the Constitution that match Gorsuch’s (and Trump’s) policy preferences? Over the centuries, “We the People” ratified critical constitutional amendments that have made our country more equal, more just, and more free.
We have given broad powers to the federal government to enforce civil rights and voting rights, and discourage discrimination against people of color, religious minorities, and women. Does Gorsuch’s record show that he prizes these constitutional values?
Perhaps most important, will Gorsuch stand up to and — if necessary, resist — unconstitutional actions by the man offering him a lifetime position on the Court, who may demand loyalty in return?
The burden is on Gorsuch to prove to the American people that his record provides satisfactory answers to these and other questions.
Make no mistake, the rule of law has been badly strained in the first months of the Trump administration. The president allegedly defied the Constitution’s protections against conflicts of interest on his first day in office, and continues to do so to this day. Trump has challenged constitutional protections and federal laws with his restrictive ban on many Muslim immigrants, persisted in playing fast and loose with the truth, and has even questioned the integrity of the judiciary itself. He has chosen an attorney general who seems intent on breaking faith with the very purpose of the Department of Justice, appearing to prize loyalty to Trump over his duty to the American people.
At the same time, House leaders have shown little interest in oversight of the new administration, much less acting as a check on a president with demonstrated authoritarian tendencies. Recall, the first order of business for House Republicans was to try to gut the ethics office in Congress. Later, a powerful committee chairman threatened the ethics office overseeing the Executive Branch.
Our courts comprise the one branch of government with the independence to rein in overreach by the President and Congress. Will the judiciary be up to the job in the Trump era? Or will it fall into line behind the political branches?
That remains an open question, as does whether Gorsuch is capable of speaking truth to power.
President Trump’s Chief of Staff Reince Priebus recently said that Gorsuch “represents the type of judge that has the vision of Donald Trump.” Does that mean Gorsuch is more likely to bend over backwards to rule for big business — like the Court he is nominated to join — rather than safeguard individual and consumer rights, as well as regulations that help protect the environment? Would Gorsuch rubber stamp shameful and unlawful exercises of executive authority like Trump’s Muslim travel ban? Has Gorsuch signaled to Trump his promise to overrule Roe v. Wade — which protects the constitutional right of women to choose abortion — if given the chance?
American democracy, James Madison wrote in the Federalist Papers, is not for “the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscure and unpropitious fortune…” Rather, he said, it was for “the great body of the people of the United States.”
So, too, are the courts to provide fair and impartial justice to all, without regard to whether the petitioner is powerful or penniless. As the phrase inscribed on the front of the Supreme Court building declares, “Equal Justice Under Law” is the ideal of American justice, and anyone who wishes to sit on the bench within that building must embrace it wholeheartedly.
Supreme Court Justices are the final bulwark against unchecked power and violations of the Constitution. At this flashpoint in American history, the Senate must strictly measure Donald Trump and Neil Gorsuch against Hamilton’s and Madison’s founding ideals, as well as the hard-won rights protected by the text, history, and structure of the whole Constitution.
Elizabeth Wydra is president of the Constitutional Accountability Center, a law firm/think tank that promotes a progressive interpretation of the U.S. Constitution in the context of public interest law. Follow Elizabeth on Twitter at @ElizabethWydra.
The views of contributors are their own and not the views of The Hill.