Judge Neil Gorsuch has performed a valuable public service by criticizing President Donald Trump’s acerbic attacks on the judiciary. The U.S. Supreme Court nominee told a senator the president’s attacks on judges are "demoralizing” and "disheartening," an extraordinary rebuke that reflects the seriousness of Trump’s assault on the courts. That frank assessment may help Gorsuch win Senate confirmation, but it also underscores the dangers of a president undermining the credibility of an independent branch of government that acts as a constitutional check on the other branches.
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U.S. Sen. Richard Blumenthal, a Connecticut Democrat, says Gorsuch told him in a private conversation that "he is disheartened by the demoralizing and abhorrent comments made by President Trump about the judiciary.” Senators often characterize their conversations with Supreme Court nominees, who generally do not speak publicly before their confirmation hearings. But Blumenthal’s account was confirmed by a White House adviser, and Gorsuch has encouraged senators to share the substance of their private talks.
The significance of a conservative judge candidly expressing his concern about attacks from a reckless Republican president the week after that president nominated him to the Supreme Court cannot be overstated. Gorsuch should be just as candid when he is questioned during his confirmation hearings, because Trump’s targeted attacks on judges have to be put into context for the American people. This intimidation of judges cannot be written off as routine bluster from a president who has yet to act presidential in three weeks in office.
It was bad enough during the campaign when Trump claimed a federal judge presiding over a lawsuit involving Trump University was biased because of his Mexican heritage. The stakes are higher as Trump continues to directly attack judges in speeches and on Twitter now that he has taken office. The president’s words carry more weight than a candidate’s, and they can inflict long-term damage on the checks and balances on the executive branch’s power as reflected in the U.S. Constitution.
After a federal district judge put Trump’s immigration order on hold, the president derided him as a "so-called judge" and later tweeted, "Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!"
After this week’s three-judge appellate panel held a hearing on the issue, Trump continued to lash out. In a speech to law enforcement officials, he said, "I don’t ever want to call a court biased, so I won’t call it biased. But the courts seem to be so political.” And, "I listened to a bunch of stuff last night on television that was disgraceful." And, "I think it’s sad. I think it’s a sad day. I think our security is at risk today.”
This is not normal behavior from a president, and it cannot go unchallenged. Other presidents, including Barack Obama, have criticized court decisions. But Trump’s personal attacks on judges involved in ongoing litigation and his attempts to hold them responsible for any future terrorist attacks if they rule against him are far beyond the traditional critiques.
Of course, Trump’s response Thursday to the news reports about Gorsuch’s criticisms was predictable. He attacked the senator who described them and insisted the judge was misinterpreted. That’s another reason why it would be helpful for Gorsuch to publicly repeat his concerns so Americans can hear them directly.
This is a perilous moment for the nation. It is Trump’s nature to lash out at independent institutions that challenge him: the courts, the media, the few members of Congress who dare speak up. But no president can be allowed to erode the independence of the judiciary and shift the balance of power so carefully crafted by the nation’s founders. Gorsuch set an example for others who should speak out against Trump’s attacks, and the American people should listen.
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