On the campaign trail, Trump repeatedly asked the people to vote for him in order to produce certain judicial results.
“I am pro-life and I will be appointing pro-life judges,” he told the nation in the third presidential debate. Roe v Wade, the 1972 decision legalization abortion, Trump said, would be overturned: “If we put another two or perhaps three justices on, that is really what will happen. That will happen automatically in my opinion. Because I am putting pro-life justices on the court. I will say this. It will go back to the states and the states will then make a determination.”
That was said by the man who has nominated Gorsuch to the Court—and who, before that, put Gorsuch’s name on the ballot.
Of course, Gorsuch himself did nothing before the election to become a political candidate. But when the White House called him to come for an interview, he came. He accepted a nomination doubly tainted—by the crude power-play against Garland and by the loud proclamation that a Trump appointee would vote as Trump promised he would.
What was said in that interview?
I don’t think Neil Gorsuch bargained with Trump over future votes. Lawyers and judges I admire, and who don’t share his conservative stances, support his nomination. I am actually relieved that Trump brought himself to nominate a grown-up to the Court. Gorsuch is about as well as we can expect to do in the next four years, and better than a lot of names Trump could have picked.
But that doesn’t mean the question shouldn’t be asked. In fact, it must be asked. This is the first Supreme Court confirmation since Trump and the GOP announced the new rules. Supreme Court justices are now elected partisan officeholders—and the next nominee may not be a Neil Gorsuch. The question about campaign promises must be asked of every nominee from now on.
That’s even truer when the appointing president has—within the first two months of his term—begun an open war against the Article III judiciary. Trump clearly has no allegiance to the idea of an independent judiciary, and does not hesitate to besmirch and even threaten judges who cross him. Gorsuch is part of Trump’s attempt to shape the judiciary; will Gorsuch promise, here and now, to stand up to him? When Trump proclaims a “national-security” crusade against this month’s enemy within, Gorsuch will stand up to him or say, “I defer”?
We heard a lot today about the glories of Colorado. Enough of that, and never mind all the blather about balls and strikes. We are in a new ballgame, and Gorsuch’s patron has proclaimed him a player, not an umpire. He should not object to being treated that way.