By David Dorsen
February 10, 2017

Barely one week after receiving the prized nomination to the Supreme Court from the volatile Donald Trump, Judge Neil Gorsuch criticized the president for his attacks on the federal appeals court judges reviewing his travel ban. According to Sen. Richard Blumenthal, Gorsuch said Trump’s statements were “disheartening and demoralizing.”

Gorsuch must know that criticizing Trump is not likely to endear him to the self-absorbed president. Why would he do such a thing?

One explanation, that cynics inside the Beltway may ridicule, is that Gorsuch is an honest and candid person who says what he thinks regardless of the personal costs, and he thinks the federal judiciary deserves respect. While it is too early to make a definitive assessment of Gorsuch’s character, he has rendered decisions and made statements that suggest that he would be rather independent-minded if confirmed.

Late Supreme Court Justice Antonin Scalia often told me that he voted liberal on certain cases despite the fact that he was a conservative. He did this because of his belief in originalism, a philosophy that holds that judges should interpret the Constitution in the same way as the people who drafted the document in 1789. In sum: Historical facts make the decision, and the judge’s job is to recognize this and carry it out.

Scalia belittled judges who he saw as result-oriented. His strong belief in originalism gave him the courage to decide cases independent of his personal preferences, and to speak out forcefully in support of his convictions informed by the Constitution.

Gorsuch may be of the same mind, following principles regardless of the impact or result. This could explain why Gorsuch criticized Trump’s assault on the judiciary. Despite the likely possibility of a negative reaction from his sponsor, the president, Gorsuch perhaps believed it was even more important to defend a conviction he holds deeply: the independence of the judiciary in a democratic country.

Alternatively, Gorsuch may have been demonstrating his independence in order to get support from Democrats. While I believe that he will be confirmed in the end, he will make it easier for himself if he can temper the vehemence of his opposition. Portraying himself as a sensible, balanced judge will make Gorsuch’s confirmation more tolerable to some liberals and independents who vehemently objected to the Senate’s failure to hold hearings on, much less confirm, Obama nominee Merrick Garland.

It is important to realize that Gorsuch does not need Democratic votes to be confirmed. By majority vote, the Republican Senate can eliminate the current rules that allow a filibuster of a Supreme Court nominee. The GOP doesn’t want to trigger the “nuclear option,” as it’s sometimes called, but they probably will if they have to. Gorsuch may save Republicans the embarrassment of changing the rules if his credentials and demeanor cause some Democrats to vote to close debate. Those senators could then vote against Gorsuch to their hearts’ content, but they still will have only 48 votes and lose. In sum, Gorsuch’s statements could do all senators the favor of keeping a filibuster rule they don’t want to change.

What about Trump while this all plays out? It would not be totally out of character for the president to withdraw Gorsuch’s nomination, but such an extreme action would have unpredictable and possibly serious consequences, such as losing the support of Republican legislators in swing districts or states, or of the party itself.

Given the risks, this option would likely be too far a leap, even for Trump. Of course, Trump has said and will continue to say that Gorsuch’s criticism was distorted. Yet he’s also likely to learn a lesson from this episode, and be more careful with finding future nominees who show less robust respect for judicial independence.

Gorsuch’s statement in support of the judiciary will encourage Democrats and liberals to view him in a more positive light, though few conservative groups seem to be in a rush to support him. We can be sure that Democrats will use this statement to embarrass Trump during Gorsuch’s confirmation hearing, which will enliven the process.

Whatever the outcome, we probably will never know for sure what was on Gorsuch’s mind when he criticized the man who nominated him to the highest court in the land.

David Dorsen is an attorney with Sedgwick, LLP and the author of The Unexpected Scalia: Liberal Opinions from a Conservative Justice, which will be published on Feb. 24.

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