The Most Important Questions for Trump's Justice Are About Democracy

Let me stipulate some important things at the outset.

First, Judge Neil Gorsuch, from every indication, is a fine man, a fine judge, and would be a fine colleague for the eight Justices now on the Court. Jack Goldsmith of Harvard, a man of terrific judgment, tweeted last night that “Neil Gorsuch is immensely qualified for the Supreme Court -- an outstanding lawyer, and judge, and person.” Gorsuch is, on the question of qualification, nearly as good an appointment as was Judge Merrick Garland. So stipulated.

Let me stipulate something else: the Gorsuch nomination breaks the emerging Trump pattern of appointments in a welcome way. Most of Trump’s important appointments have gone to scary haters like Mike Flynn, Steve Bannon, and Jeff Sessions, or to flagrant incompetents like Ben Carsons, Betsy Devos, and Rick Perry. A nomination that fit that pattern would have begun at the level of William Pryor and possibly moved down to the level of Peter Thiel or even to some wretched shyster who has spent his career screwing drywall contractors out of monies owed them by the Trump Organization. In this one area, thus far, grownups seem to be in charge.

Third, I disagree with his judicial philosophy. On issues like reproductive rights and choice, the proper role of religion in law, the environment, his presence on the bench would help propel this country in a retreat from freedom and liberty we cannot afford to make. Any progressive (no matter how mild his or her inclination) has ample evidence to, and should, oppose this nomination on the merits. The groups issuing anguished criticisms of his nomination have every reason to worry that his vote may move the Court to violate treasured constitutional values. (In particular, Gorsuch’s views on the individual’s bodily autonomy—in reproductive choice and contraception and in end-of-life issues—are alarming and need to be aired thoroughly during a confirmation.)

Fourth, the vacancy that Gorsuch is being appointed to fill was procured by constitutional malfeasance of the worst kind. Senators Mitch McConnell and Charles Grassley—and all those senators who enabled them by silence—dishonored their constitutional oaths in a serious way. Worse yet, they persuaded the gullible that Article II § 2 cl. 3, setting out the duty to offer “advice and consent,” means nothing more than “nonny nonny boo boo.” This was shameful, and has done lasting damage to the Constitution that will take decades to repair—if repair is possible. Democratic Senators want revenge, and they have every reason to want it. So stipulated.

Finally, let me say this: each of the above considerations is of huge importance. But one issue stands above them all: the fate of democracy.

This nomination comes at a moment of unprecedented danger for the United States. After less than a month in office, President Trump has pushed executive authority far beyond its already broad boundaries. He shows little sign of slowing down. The Trump administration may be on the verge of taking our republic to what for lack of a better term we will call “full banana.”

That means that the fight against dictatorship should be our main focus now. No cause that progressives value—not reproductive rights, not voting rights, not the environment, not public health and health care—will survive if the cabal in the White House achieves the power they covet.  Even though the endgame is almost certainly going to be confirmation of Gorsuch, the Democratic and progressive effort against the nomination needs to use the battle—as drawn-out as possible—to focus the national mind on the danger of crypto-fascism. That fight isn’t advanced if the effort is framed as vengeance for Garland. If it is used to lay down clear markers for acceptable behavior by the administration, it may be an important chapter in the fight.

So here’s an initial suggestion of some areas Senators should prepare to question Gorsuch on—aggressively.

• What are the limits of executive power in the context of immigration and the treatment of non-citizens? How long can immigrants be detained without bail hearings? What is the role of courts in supervising the conditions of detention of those who are allegedly undocumented or removable? When can lawful permanent residents and visa holders be excluded from return to the United States? What is the role of racial or religious classification in immigration policy? Do the constitutional guarantees of due process and equal protection apply to immigrants in the United States? Does the Equal Protection Clause cover classifications by religion?

• Under what circumstances can the executive—or the executive and Congress together—suspend the writ of habeas corpus? When can citizens be detained without trial? Without counsel?

• What are the requirements of free speech and free press in time of crisis? What protection can the law allow against bullying by powerful politicians to silence voices of dissent?

• What are the dimensions of the right to vote? How far can legislative efforts to regulate voting go before they become vote suppression? What role does voting play in keeping the country free?

• What are the dimensions of birthright citizenship under the Fourteenth Amendment? What about naturalized citizenship? Could the President, or President and Congress, under the Constitution as it is, pass a statute—or even create an administrative mechanism--to strip citizenship from disfavored individuals or groups?

• What are the limits of the government’s ability to use electronic surveillance on citizens? On other residents of this country? What role should the courts play in confining this to its lawful bounds? How far can Congress go in authorizing warrantless surveillance?

• Is torture ever permitted under the Constitution? Can the executive instruct national-security personnel to ignore legislative limits like the Torture Victim Prevention Act?

• When may officials of the government—even high officials who make policy—be held accountable in court to citizens whose rights are injured by those policies? What protection in the courts should be afforded to citizens abroad? How extensive should the constitutional remedy be for violations of constitutional rights by federal agents, whether of Homeland Security, Justice, the Central Intelligence Agency, or the Defense Department?

• When if ever may the executive, with or without Congress, respond to emergencies by suspending the guarantees of the Bill of Rights and of statutes, or by claiming the power to insulate its decisions from judicial review?

• Lastly, Judge, no fooling around: What is democracy to you? Do citizens have a right to dignity, to sexual and other autonomy, to racial and sexual equality—not formal equality but real equality worthy of the name?

This list is far from exhaustive. But this class of questions—basically, Judge Gorsuch, can and will you stand up to your benefactor Trump by voting to keep American a free country?—is central.

I am no political strategist, and so I can’t say what course of action will most benefit the Democratic Party. Should Democrats filibuster this nomination? Should they filibuster for a while, or try to use the filibuster to kill the nomination?

I don’t know. But I do think this. Gorsuch should not be allowed to go on the Court until he has answered the kind of questions above. The standard dodge––“I am sorry, Senator, but that issue may come before me”—cannot be allowed to cut it in 2017.

This will not be “politicizing the Court.” The politicization—the demonstration that the Court is now simply an arm of the majority party, with qualification and merit wholly subordinated to the partisan imperative—was completed by McConnell and Grassley in 2016.  Trump pushed the politicization further by suggesting that the Court vacancy was created by the assassination of Justice Antonin Scalia, by publishing his judicial list before the voting precisely to make the names campaign issues, and by proclaiming an anti-choice litmus test for any nominees. Remember his boast that Maureen Scalia, the justice’s widow, had a Trump sign on her lawn?

“Politicization” is where the Garland fight should come home to roost. You made this bed of nails, Republicans. Now lie in it.

If Senate Republicans can refuse to consider a nominee for political reasons, Democrats can refuse to confirm a nominee if he doesn’t answer these fair questions.

There are no more rules: the Republicans shredded them.

Judge Gorsuch, you seem like a great guy, bless your heart, love you to death, we purely do.

Have a seat now and tell us how you feel about authoritarian government. Then we’ll see about a vote.

Garrett Epps is a contributing writer at The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.