Democrats may make President Donald Trump’s tweet attacking the “so-called judge” who halted his immigration restrictions a test of Supreme Court nominee Neil Gorsuch’s willingness to check executive power.
Senate Democratic Leader Chuck Schumer said Saturday’s Twitter message criticizing U.S. District Judge James L. Robart “shows a disdain for an independent judiciary that doesn’t always bend to his wishes” and would increase the scrutiny on Gorsuch.
“With each action testing the Constitution, and each personal attack on a judge, President Trump raises the bar even higher for Judge Gorsuch’s nomination,” the New York Democrat said in a statement. Vice President Mike Pence, in an interview with ABC News, said the comment wasn’t an attack on the Constitution’s separation of powers.
The idea of making judicial independence a cornerstone for Gorsuch’s confirmation hearing comes as Democrats look for a strategy to block Trump’s nominee. That looks like an uphill battle since Gorsuch was confirmed for his current post by a unanimous voice vote in the Senate in 2006.
“The first question at Judge Gorsuch’s confirmation hearing should be whether he condones this disparagement of a fellow federal judge,” Ronald Klain, a Democratic lawyer who worked in the Obama and Clinton White Houses, said on Twitter.
My So-Called Judge
The tweet that set off the firestorm read, “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” Trump later in the day wondered in another tweet, “What is our country coming to when a judge can halt a Homeland Security travel ban and anyone, even with bad intentions, can come into U.S.?”
Trump was referring to Robart, who late Friday ordered a nationwide halt to an executive order halting travel to the U.S. by people from seven predominantly Muslim countries. Robart was an appointee of Republican President George W. Bush and won Senate confirmation in 2004 by a vote of 99 to zero.
Senator Patrick Leahy of Vermont, the chamber’s longest serving Democrat and a former chairman of the Judiciary Committee, condemned what he called Trump’s attempt to “bully and disparage” Robart. Leahy said in a statement that Trump’s “hostility toward the rule of law is not just embarrassing, it is dangerous. He seems intent on precipitating a constitutional crisis.”
‘Check and Balance’
Trump’s response makes it “even more important that Judge Gorsuch, and every other judge this president may nominate, demonstrates the ability to be an independent check and balance on an administration that shamefully and harmfully seems to reject the very concept,” Leahy said.
Leahy noted that Trump’s comments were not his first attack on a judge. During the presidential campaign the Republican suggested that a federal judge couldn’t impartially oversee a case involving Trump University because of his Mexican ancestry. The judge, Gonzalo Curiel, was born in Indiana.
The war of words comes as Democrats face pressure from their base to block Trump’s nominee. Supreme Court nominees are subject to a 60-vote threshold under current Senate rules, and Schumer has said Democrats will insist on that standard to ensure the eventual justice is “mainstream.” Republicans have 52 votes in the chamber.
Trump counselor Kellyanne Conway noted Saturday that Schumer was among those approving Gorsuch in 2006.
So far, the only Democrat that Gorsuch has met with is West Virginia Senator Joe Manchin, although other moderate party members have sounded open to supporting him. Republicans have broadly praised Trump’s pick.
Neal Katyal, a former acting U.S. solicitor-general in the Obama administration, said in a tweet that he’d “never seen a president attack a sitting judge this way.” Laurence Tribe, a constitutional law professor at Harvard Law School, said on Twitter that “it would be good strategy for Judge Gorsuch to condemn Trump’s ‘so-called’ judge remark. If he doesn’t, that in itself would be troubling.”
In an interview that will air Sunday on ABC’s “This Week,” Pence defended Trump’s criticism of Robart as part of an effort to keep the U.S. secure. Asked whether calling Robart a “so-called judge” undermines the separation of powers in the Constitution, Pence said he doesn’t think it does.
“The American people are very accustomed to this president speaking his mind and speaking very straight with them,” Pence said, according to a partial transcript provided by the network.
Trump has said that if Democrats block Gorsuch, he’ll suggest that McConnell change the rules of the Senate — which a majority can do with 51 votes — to eliminate the Supreme Court filibuster. “If we end up with that gridlock I would say, ‘If you can, Mitch, go nuclear,”’ Trump told reporters on Feb 1.
McConnell didn’t rule out eliminating the filibuster when asked this week by conservative radio host Hugh Hewitt if he would be willing to do so to confirm Gorsuch. Still, no Supreme Court nominee has ever been defeated by a filibuster.
Gorsuch was nominated on Jan. 31 to fill the vacancy created when Justice Antonin Scalia died in February 2016. McConnell declined to give consideration to Merrick Garland, former President Barack Obama’s nominee, arguing that the seat should be filled by the winner of the 2016 presidential election.