Judge Gorsuch Parts With Trump On Attacks On Judiciary
Judge Gorsuch isn't much of a fan of Donald Trump's comments about the judiciary.
Judge Neil Gorsuch, who was nominated by President Trump for the seat on the Supreme Court that has been vacant since Justice Scalia’s death last year, isn’t very happy with the President’s comments about the judiciary:
Donald Trump’s nominee for the Supreme Court distanced himself from the president on Wednesday, calling Trump’s attacks on a federal judge “demoralizing” and “disheartening.”
Neil Gorsuch made the comments in a meeting with Sen. Richard Blumenthal, a Connecticut Democrat, when he was asked about Trump’s attacks on Twitter and in speeches. Trump has called a federal judge who blocked his travel ban from seven Muslim-majority countries a “so-called judge.” He has also urged his followers to blame the judge and the judiciary, should there be any terrorist attack carried out by an immigrant.
“My strong hope is that he will be more vehement publicly,” Blumenthal told reporters after meeting with Gorsuch. “He certainly expressed to me that he is disheartened by the demoralizing and abhorrent comments made by President Trump about the judiciary, but I will be asking for more specific and forthcoming responses to those kinds of questions before I determine how I will vote.”
A Gorsuch spokesman confirmed the comments were made during the Wednesday afternoon meeting, when he was asked about the “so-called judge” line. Blumenthal was quick to make political hay of the comments and pressed Gorsuch to make a public condemnation of Trump’s comments toward the judiciary, perhaps during his upcoming confirmation hearings.
This morning, President Trump took to Twitter to criticize Senator Blumenthal, suggesting that he was fabricating what Gorsuch had said to him:
President Donald Trump falsely accused a Democratic senator Thursday of misrepresenting his Supreme Court nominee’s words, according to several familiar with the incident.
Sen. Richard Blumenthal said Wednesday that Judge Neil Gorsuch, Trump’s nominee, told him he found Trump’s attack on a federal judge on Twitter “disheartening” and “demoralizing.”
Within a half-hour, Gorsuch spokesman Ron Bonjean, who was tapped by the White House to head communications for Gorsuch, confirmed that the nominee, Gorsuch, used those words in his meeting with Blumenthal. Several other senators, including Republican Sen. Ben Sasse of Nebraska, later relayed similar accounts of Gorsuch forcefully criticizing Trump’s public attacks on the judiciary branch.
And on Thursday, Blumenthal said on MSNBC Gorsuch specifically told him he “should feel free to mention what I said about these attacks being disheartening and demoralizing.”
But none of that stopped Trump from firing off a shot against Blumenthal — and at the same time raising questions about the coherence of the White House’s messaging.
Supreme Court nominee Gorsuch calls Trump’s tweets ‘disheartening’
“Sen. Richard Blumenthal, who never fought in Vietnam when he said for years he had (major lie), now misrepresents what Judge Gorsuch told him?” Trump tweeted Thursday morning.
Gorsuch’s criticism came in response to Trump’s recent criticism of federal judges who have ruled against his immigration ban or appear poised to do so, in particular in reference to one of the President’s tweets slamming one of those judges as a “so-called judge.”
“The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” Trump tweeted last Saturday.
On Wednesday, Trump pressed forward with his criticism, arguing that the judiciary has become too political and suggesting that judges on the 9th
Circuit Court of Appeals might rule against his appeal to reverse a temporary stay on implementing his travel ban because of political considerations, instead of the law.
Blumenthal stood by his accounting of Gorsuch’s comments, telling CNN’s Chris Cuomo on “New Day” Thursday morning he “absolutely and accurately” stated what Gorsuch told him.
“I think that the President needs to hear from Judge Gorsuch about exactly what he is saying to myself and Senate colleagues,” Blumenthal said. “Maybe he simply hasn’t been informed and that’s the reason for his tweet.”
Trump’s tweets, meanwhile, were contradicted by subsequent comments that make it clear that Blumenthal was correctly stating what Judge Gorsuch had told him. First, former New Hampshire Senator Kelly Ayotte, who is working with the White House to help shepherd Gorsuch’s nomination through the Senate essentially confirmed what Blumenthal had said:
Gorsuch clarifies what he's been saying in private conversations, via a statement from Kelly Ayotte, who is helping Trump get him confirmed. pic.twitter.com/4dzrI5sPpt
— Jennifer Jacobs (@JenniferJJacobs) February 9, 2017
Then, Nebraska Senator Ben Sasse, a Republican who has emerged as one of Trump’s chief critics, confirmed that Gorsuch had said basically the same thing to him during their meeting on Capitol Hill:
.@SenSasse says Gorsuch told him: Any attack on brothers or sisters of the robe is an attack on all judges https://t.co/vGqx4aGdb6
— Morning Joe (@Morning_Joe) February 9, 2017
Given that Gorsuch has been a Federal Judge for more than a decade now, it’s not entirely surprising that he’d feel this way about comments that were clearly intended to disparage Judge Robart and the three Judges on the Ninth Circuit panel that heard the appeal of Robart’s TRO. It’s an attitude that you’ll find quite common among members of the judiciary at all levels, state and federal, who tend to be quite protective of their profession and its unique role in our legal and political system. The fact that he’s willing to distance himself like this from the man who appointed him is both a good sign and a sign that he’s not likely to be easily intimidated by litigants, politicians, or the President who appointed him. Some Senators, such as Minority Leader Chuck Schumer, are saying that Gorsuch needs to make a more public statement, but I don’t think that’s necessarily the case. The reports by Senators Blumenthal and Sasse, along with the confirmations that have come from those working with him as representatives of the White House, make what he said exceedingly clear and convey the message he obviously hoped to convey.
As Josh Marshall notes, these remarks, and any subsequent comments that Trump has to make about the judiciary in the coming weeks, are likely to make Gorsuch’s confirmation process much more interesting:
I fully expect that we will now see Democrats make almost the entirety of Gorsuch’s confirmation process into a review and critique of President Trump’s behavior in office, treatment of the judiciary, respect for the rule of law, reliance on executive orders and more – with a particular emphasis on the difference between what Gorsuch is willing to say in private and what he is willing to say in public, especially under oath.
No judge with integrity can look kindly on what we’ve seen from President Trump. So I take his remarks at face value. This afternoon many observers said that this was also good politics for Gorsuch and his nomination. While I agree with that judgment as far as it goes, the logic assumes a President who is in control of his emotions and faculties. Neither of which are the case.
Remember, we know President Trump very well by now. He has just gifted Gorsuch the opportunity which is the ultimate prize in any elite judicial career. The idea that Gorsuch would now pass a negative judgment on Trump and his behavior as President can only strike him as a betrayal. Almost any other President would be able to prioritize his interests over his ego and give Gorsuch the room he needs. Trump will almost certainly not be able to.
Some people have suggested online that Trump might withdraw Gorsuch’s nomination over this, but I find that highly unlikely. For one thing, he’s already on record saying that Gorsuch is the best person for the Supreme Court so withdrawing it now would make him look even worse than the last three weeks have already done. Additionally, if Trump were to do this it would inevitably mean that any future nominee would be asked precisely the same questions as Gorsuch. Instead, it strikes me that what Gorsuch has done here, whether intentional or not, is give Democrats who may be inclined to support him some degree of political cover for doing so.
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There has been speculation that after Democrats in the Senate are permitted to throw a tantrum, that Schumer will find 8 Dems to vote for Gorsuch in order to keep the filibuster for the next appointment which will likely be more critical to the Left and perhaps Trump will be weaker then?
In the last 20 years, how many times has a Supreme Court Justice voted in a way that contradicted or repudiated their partisan political beliefs? It has happened, but rarely and the chances of it decrease with the prominence and relevance of the political issue at stake. Are we not all aware that the reason no one is ever allowed to cite Bush v Gore as precedent is because the winning side explicitly embraced legal arguments they reject in every other case?
Judges are human beings with the same asinine prejudices and petty grievances as the rest of us. They are immersed in a culture that supposedly teaches them to put those things aside, but Catholic Church culture has always been pretty vehement about priests not having sex with children and we know how that worked out.
Does that mean Donald Trump is correct to throw some mild derision at this judge? Of course not, but mindless deference toward policy-makers is anathema to democracy. We can allow judges to behave as unelected lawmakers or we can maintain the naive deceit that judges are this saintly order of wise men unconcerned with worldly matters. Trying to do both will not end well.
Mike
Nah…the so-called president will just convince himself that Gorsuch didn’t say it. Like he convinced himself of big crowds at his inauguration, and that it wasn’t raining. Or that his immigration ban isn’t a ban. Or that Obamacare is a disaster and he replaced it on his first day.
He can’t look much worse in the eyes of smart people. The only way it gets worse for dear leader is if people like JKB start to realize what a fwck up they made when they voted for him…and JKB isn’t capable of realizing that…so it’s not going to happen.
Gorsuch knows that he could be next.
Trump would put a knife in his mother’s back if it boosted his ego or soothed his hurt little feelings. He’s a prick.
I’d be perfectly happy to vote for Gorsuch, considering some of the lunatics Trump could have dredged up….Mr. “Ten Commandments”?
Is there any reason to believe that Judge Gorsuch’s handers haven’t been pushing this in an attempt to make the confirmation go easier?
Also, is this real? https://twitter.com/SCOTUSNGorsuch
If so, Gorsuch hasn’t commented on twitter about Trump’s inappropriate comments, and IF IT AIN’T ON TWITTER, IT DON’T COUNT.
Senator Sasse used the phrase “brothers or sisters of the robe” to describe the judiciary, possibly quoting Judge Gorsuch.
When I hear the phrase “brothers or sisters of the robe”, I don’t think of dark, judicial robes, or brown jedi robes, I think of white robes.
@Gustopher:
Sasse said that those were Gorsuch’s words to him.
In any case, if Sasse were a Klansman, the Trumpkins wouldn’t hate him with the rabid intensity that they do.
@Gustopher:
Federal Judges are highly discouraged from using social media by the DOJ, and for good reason.
Sort of a “We aren’t saying you can’t do it, but don’t do it” thing.
@CSK: Not suggesting that he is a Klansman, just a bit amused by the phrase — it makes sense in their local community, but brings up all the wrong implications outside that community.
@MBunge:
Actually, Supreme Court Justices have fairly commonly made decisions counter to the expectations of the president who appointed them. Earl Warren was appointed by Eisenhower and led the most progressive era of the Court. Harry Blackmun, author of Roe v. Wade, was a Nixon appointee. John Roberts helped Obamacare dodge a bullet.
They are not political cyphers, though and Bush v. Gore is an example. But most judges – certainly the ones I worked for and most I have known – make an effort to be apolitical. I would not have expected any member of the judiciary to say anything less than what Gorsuch said – some would say more. He has peers to return to and work with, whether this nomination goes through or not. That he stands up for them as a group is probably more important to his ability to function if he is confirmed (and I assume he will be).
If Trump were to withdraw Gorsuch with any stench of this as a reason (and I don’t think Trump will), it would be hard to find any current jurist who would step forward. Trump would have to resort to one of his political hack buddies and that would be a shit show even in a Republican Senate.
Gorsuch seems to be a reasonable, if very conservative, judge. With the Republicans in charge, we aren’t going to get Ginsberg or Sotomayor and as noted above, it could be a lot worse. However, I think this will end abortion as a protected right as Gorsuch has given every indication he will take the most extreme view of right to life. But once a Republican was elected that was inevitable.
Trump. For a man with such tiny hands, he sure manages to trip over his dick a lot.
@CSK:
If Sasse were a Klansman he would be a Trumpkin. Not all Trump supporters are Klansmen, but I would bet most Klansmen are Trump supporters.
@Pete S:
Well, of course. Trump did get the backing of The Crusader, the Klan newspaper, as well as the actual endorsement of The Daily Stormer, the neo-Nazi paper.
That is an achievement unequaled by any other recent presidential candidate.
Anyone remember when President Obama attack On Judiciary by telling the Supreme Court Justices they decided Citizen’s United wrong?
Progressive wanted Justice Samuel Alito thrown off the Court for disrespecting the President.
@Paul L.:
I have heard plenty of presidents criticize decided Supreme Court cases. Roe v. Wade anyone? Anyone? Remember when Obama (or any other president) called out a specific Supreme Court justice or any judge as doing anything worse than authoring a decision he disagreed with? Remember his (or their) “so-called judge” moments? Let me know when you find some.
In the meantime, demeaning individual judges on pending cases remains an inappropriate move.
@Paul L.: Trump is not a lawyer by training who questioned a ruling, he questioned the abilities of the judge. Those are not remotely the same thing.
omg- he’s supposed to agree with everything trump…….lol.
slow news day or just the same hissyfit?
@bill: Did the point of all this even ruffle your hair as it sailed clean over your head?
This just in: in a per curiam ruling (unanimous. 3-0), the 9th Circuit has declined the government’s application for an emergency stay of Judge Robart’s TRO. It remains in effect.
I’d love to be a fly on the wall at the White House right now … 🙂
@Pete S:
Just BTW, you don’t have to be a trained lawyer to question a ruling. Anyone willing to engage in the opinion, the strength of its reasoning and precedent, can complain about any opinion issued by any court at any time. By definition that excludes Trump. But complaining about a ruling is not the same thing as complaining about a judge. Even there, everyday Americans can always blame the judge. I usually disagree with them, but this is America. Elected office holders who want the public’s respect for their office don’t get to say everything that comes to mind about other office holders.
@HarvardLaw92: The President clicked ‘CapsLock’ and rationally Tweeted his deep thoughts.
AKA President Pud
@Argon:
I saw. He’s inching himself closer to the edge with every defeat / rejection / humiliation. I can’t say that I’m surprised, though.
When I commented earlier, I had just quickly skimmed the operative section of the ruling in order to report the outcome. Now, after reading it in full, I have to say: this was an utter smackdown.
Negative rulings on procedural questions from appeals courts tend to be very brief; a few sentences which amount to “no” and it’s left at that with little or no explanation as to why. This panel, however, went out of its way to totally and completely repudiate the government’s arguments, addressing what it viewed as both due process AND establishment clause problems. It’s tantamount to a flat palmed slap across the government’s face.
More pathetic posturing from the pussyhat patrol. Gorsuch will be confirmed and RBG will have to retire because of full on demetia. Too bad pussyhat b1tc3z
I like Trump criticizing Blumenthal’s Vietnam record. It was very relevant to the issue at hand and has special impact coming from Mr. Bonespurs.
@HarvardLaw92: I have to wonder… Who thought that the ‘irreviewable’ gambit with no evidence would fly in the first place?
Working for this Administration would have to be soul-crushing or for the soulless. I hope the taint of association from working in this Administration follows these enablers for a long time to come.
@HarvardLaw92: The discussion has been very interesting.
I am left wondering two things: will Trump go for an en banc ruling, or straight to the Supreme Court, and, will the SC bother with this (rather than waiting for a case challenging the Constitutional merits)?
On that note, I’m wondering if it isn’t a bit premature to assume even a SC decision on the Constitutional questions would be 4-4. I can’t imagine that too many of the Justices cared much for the “it’s not reviewable” argument.
@Argon:
Speaking frankly, as a former federal prosecutor, that was the “a-ha!” moment for me; that was the moment that I knew they were going to lose (although the per curiam did surprise me. I was expecting 2-1).
You don’t walk into a federal court & tweak the noses of federal judges by telling them that they have no authority over you and then expect not to get gutted.
@Jen:
Technically speaking, the government could file seeking an emergency stay of the TRO from SCOTUS, although it’s highly unlikely. TRO’s are not generally not subject to appeal as a matter of right, and Kennedy would make the decision whether or not to issue one. I feel confident that the response from SCOTUS would be to say no and punt it back to the DC for a hearing on the merits. It’s a lose/lose proposition for the administration.
At the moment, how this proceeds hinges on whether WA & MA decide to seek a PI or move to proceed directly to trial on the merits under the (now reinforced) umbrella of the TRO. We could be back and forth between courtrooms in Washington State and California a few more times before this gets anywhere near SCOTUS.
Which brings the finite duration of these particular provisions into specific relief: they are overwhelmingly likely to expire on their own accord long before the question of their permissibility gets anywhere near the Supreme Court. Once they die, the issue becomes moot. WA & MA will try to run out the clock, and they’ll likely succeed.
Then we move on to attacking the parts of the EO which haven’t operationalized yet. He’s in for a very long fight, which he’s more likely than not to lose.
Of course, Trump has weighed in on Twitter with this:
SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!
What a moron.
@Daryl’s other brother Darryl: Well, it could be worse. Just ask the Knicks.
@Argon:
The lawyers work with what they have. In this case, it wasn’t much.
In so many words, Sally Yates warned us that the government’s case would not be defensible in court. She was right.
@HarvardLaw92:
Could the government attorney, believing that the case should go forward, used the nonrenewable argument, knowing that it would guarantee his loss, but knowing it would please his master??
Please, someone shove the binky back into his mouth.
@Sleeping Dog:
I’m not sure that I follow what you’re asking.
TRO’s are a pre-trial construct. The normal course of events is that the movant will then proceed with an application for a preliminary injunction (which does the same thing that the TRO does – block enforcement – except it normally remains in effect for the duration of the hearing on the merits.) The ruling in that merit hearing either makes permanent the bar on enforcement (by ruling for the movant[s]) or terminates the bar (by ruling for the adverse party).
PI’s, unlike TRO’s, are subject to appeal on face as a matter of right, so what you could see here is: Robart grants WA/MA’s motion for a PI and schedules a trial date (typically these proceedings are combined). The government would then appeal to the 9th Circuit to overturn the PI (which would allow the government to enforce the EO while the hearing on the merits was taking place). Such an appeal has a low probability of success IMO based on today’s ruling.
It’s more likely that the government will not oppose the PI, but instead want to move past it in order to proceed directly to trial so as to speed up the clock / get their appeal on the merits ruling before the 9th Circuit in order to try to get the matter before SCOTUS more quickly, although again, their calendar is already full. If it were heard at all this term, it wouldn’t be until May at the earliest.
For practical purposes, IMLO these initial sections of the EO are essentially dead in the water.
Someone said that’s on the Trump family Coat of Arms.
The schadenfreude is awesome.
The trouble is that this ban has done us real damage in the Middle East. Its made us way less safe. It’s given ISIL recruiting propaganda. It’s proven that everything they say about us is true. Its alienated our allies…people that have been helping us are getting fwcked.
I love that the so-called president got bitch-slapped…but I’m afraid the damage is done…and it’s only going to get worse on every front.
@Pch101:
Yeah…Sally Yates was dead on. Good for her for standing up for what’s right. If only we could find a few Republicans willing to do that.
I’ve got a Benjamin that says the so-called presidents approval rating is in the mid 30’s by next week.
@HarvardLaw92:
So I agree with most of your analysis, but not with your abbreviations. The states involved are WA (Washington) and MN (Minnesota). MA is Massachusetts. Just sayin’.
@Paul L.: The article you linked was quite interesting. But not for the reasons you think.
It doesn’t support your argument in the slightest, but it is a good reminder that Republican threats on the judiciary are nothing new.
@Joe:
You’re correct. I’m currently working on an acquisition deal in progress concerning a corporate entity in Boston and had Massachusetts at the front of my mind.. The perils of trying to do two things simultaneously – you risk doing neither of them well.
@HarvardLaw92: Thanks for the detailed response!
@bandit:
You never tire of crapping in your pants, do you?
The future of the Republican party.
http://talkingpointsmemo.com/news/college-republicans-sorry-hitler-valentines-card
Stay classy Republicans.
@bill:
I think the bigger issue is that he not only didn’t agree with the so-called president…but then your dear leader lied about it.
Just like he lies about everything: crowd sizes, draining the swamp, getting rid of Obamacare, Muslims cheering the collapse of the WTC…fwck, the list of his lies is long.
Your savior is a mental case…just like you.
Maybe I don’t know the rules, but why didn’t the Senate Democrats filibuster one of the truly terrible picks (DeVos, Sessions, etc.)? I don’t think they should filibuster Gorsuch, who has the credentials and apparently the temperament, whether or not you agree with his rulings.
@Franklin: The Democrats did away with the filibuster for Cabinet appointments so that the Republicans only need a simple majority for those. Not so with Supreme Court Justices (yet), the Republicans may yet invoke the “nuclear option” and do away with the 60 vote threshold for those as well.
Andrew Sullivan:
http://nymag.com/daily/intelligencer/2017/02/andrew-sullivan-the-madness-of-king-donald.html
@Joe: Back in 2011, more than a year before the SCOTUS ruling on Obamacare, Alex Knapp here wrote a series of posts predicting that the Court would rule 8-1 in the law’s favor. I argued the ruling would almost certainly be 5-4 and that there was a strong possibility it would be on the side of striking down the law. Of course my prediction was a lot closer to what ended up happening (though I never anticipated Roberts as opposed to Kennedy would be the one to save the law). But Knapp was basing his prediction on the judicial philosophies that each of the justices had adhered to in the past. I was basing mine on my belief that judicial philosophy was largely a sham when it came to things like this, and that Bush v. Gore had proved once and for all that the justices were essentially partisan actors who cloaked their motives behind a veneer of impartiality that simply did not exist.
I still hold that the 2012 Obamacare case was a lot more like Bush v. Gore than is commonly perceived. Yes, the ruling did end up in Obamacare’s favor. But four of the justices, including the supposed moderate Kennedy, voted to eliminate the entire law, and that was utterly absurd based on either precedent or the individual philosophies of the justices, as Knapp’s analysis made clear. Moreover, even Roberts came close to ruling against the law, changing his mind almost at the last minute. And a lot of people forget that even he helped cripple the law’s Medicaid provision (which is a far more extensive part of the law than most people realize) by making it optional within each state.
We are no longer in the era of justices like Earl Warren or John Paul Stevens who end up practically on the opposite side of the aisle from the presidents who appointed them. Nowadays justices are chosen essentially for their partisan beliefs, and heavily vetted so that they’ll stick to them. Roberts isn’t in the Warren category at all; his Court is one of the most conservative in decades, having given us Citizens United, Shelby County and a host of other right-wing decisions that passed based entirely on the five conservative justices voting on party lines. Roberts has gotten classed in the category of wayward justices in large part due to his decisions not to blow up Obamacare for idiotic reasons that no one would have taken seriously prior to Obama’s presidency. On the basis of those two decisions he’s a RINO in the Warren mold. It just goes to show how far the Overton Window has shifted.
@Kylopod:
I think Chief Justice Roberts took a look at the situation and said to himself, “the Court will set off a firestorm if we vote to invalidate ACA, so I’m going to leave this for Congress to do as it will. Let them take the heat on this.”
Roberts is practical, he was wise. Basically, with respect to ACA we’re now at the point where he wanted us to be – with Congress taking the heat, not the Court.
@J-Dub: Ahh, okay. Thanks.
@al-Alameda:
Yeah, that was my thought at the time, and it fits how he’s ruled in other situations. Basically, one of his tenets is “Don’t cause the Second Civil War.” For that reason alone I think there’s a real possibility he would vote to uphold Roe v. Wade, if it ever comes to that.
(My brother has a different theory. My brother nearly died from a series of epileptic seizures at the age of 35, and it was brought on in part by his having been uninsured courtesy of his preexisting condition. Roberts also suffers from epilepsy. Just sayin’.)
@Gustopher:
Curiously, my first thoughts were about Jedi knights; that probably doesn’t say good things about my maturity. And then Catholic priests for some reason, not sure why given that I’m not Catholic … must be something that stuck with me from some old movie.
I don’t find it hard to believe that Gorsuch finds Trump’s comments offensive; I don’t like his politics, but he seems to be an intelligent guy, and no one likes to have their profession disrespected by the President.
I’d like to know who told Trump to pick Gorsuch. It just feels so out of place compared to the rest of Trump’s decisions.
Or is Gorsuch not a right leaning version of Garland?
@Matt: Pence told him to pick Gorsuch.