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Senate Democrats’ Incoherence on Gorsuch and Executive Power

By Adam J. White

In this week’s Senate Judiciary Committee hearings on Neil Gorsuch’s nomination to the Supreme Court, look for Democrats to criticize Gorsuch for being too deferential to the Trump Administration—and, at the same time, for not being deferential enough to it.

They definitely will attack Gorsuch for being too deferential to the Trump Administration. We know this because they began to launch this attack weeks ago. Senator Chuck Schumer, the Senate minority leader, raised the issue just days after Gorsuch’s nomination: “It’s a serious concern with a president who attacks the judiciary and seems to not respect the rule of law and the Constitution that you have a really independent justice.” Days later, he made this the core point of his New York Times op-ed:

Given the administration’s disdain for the judiciary, any nominee to the Supreme Court, particularly by this president, must be able to demonstrate independence from this president. The bar is always high to achieve a seat on the Supreme Court, but in these unusual times — when there is unprecedented stress on our system of checks and balances — the bar is even higher for Judge Neil M. Gorsuch to demonstrate independence. In order to clear it, he will have to convince 60 of my colleagues that he will not be influenced by politics, parties or the president. The judiciary is the last and most important check on an overreaching president with little respect for the rule of law. … When I met with Judge Gorsuch on Feb. 7, I sought to ascertain his potential to be an independent check on the president. … Without any hints about his philosophy or examples of how he might have ruled on landmark cases, the only way that Judge Gorsuch was able to demonstrate his independence as a jurist was by asserting it himself. He could give no evidence of it in his record, and therefore I could have no assurance of it in the future.

Schumer is not alone, of course. Senator Dianne Feinstein, the Senate Judiciary Committee’s senior Democrat, told Reuters, “[w]hat we would like to see is an independent judge, and the hearing will determine that.” Similarly, the committee’s Senator Richard Blumenthal asked, “Will Neil Gorsuch be an independent and impartial decision-maker on the court or will he cave to the Trump bullying?” The committee’s Senator Dick Durbin says “I believe the independence of our judicial system, and especially the Supreme Court, is more critical now than at any time in recent history. That is the context in which I will review this nomination.”

And so on. This line of attack is hardly surprising—of course Democratic senators want to make sure the next Supreme Court justice is independent of the Republican president, just like Republican senators under Obama.

But what is surprising, or at least amusing, is that many of the same Democrats will also attack Gorsuch for being too independent of the president — that is, for not being deferential enough. As I noted in my Weekly Standard piece a few weeks ago, Judge Gorsuch’s criticism of “Chevron deference” will likely be a significant focus of the next days’ questions. In two stirring opinions, Judge Gorsuch has criticized the Supreme Court’s doctrines favoring formal judicial “deference” to executive agencies’ legal positions.

The Democrats’ self-contradictory line of attack starts with Senator Feinstein herself. According to her hometown newspaper, Feinstein’s office issued a release calling Gorsuch an “extremist” for, among other things, being insufficiently deferential to the executive branch:

Feinstein’s office criticized him for his hostility to the Supreme Court’s doctrine of deferring to government agencies’ interpretations of unclear federal laws. He has called the doctrine a violation of the constitutional separation of powers.

Similarly, Sen. Blumenthal said that he is “upset” by Gorsuch’s skepticism of Chevron “deference” to the executive branch:

Blumenthal said he was also upset with Gorsuch’s stand on the Chevron doctrine, which states that the courts should give deference to administrative agencies in making decisions on technical issues involving their expertise. Gorsuch, in a court opinion, said the doctrine should essentially be overruled, claiming that it represents “abdication of the judicial duty.” … “This has guided courts for decades,” Blumenthal said and overturning it is “outside mainstream legal thinking.”

It will be interesting to see how Schumer and others navigate this contradiction in their own thinking. Or maybe they will just ignore the contradiction altogether, and persist in arguing that Gorsuch is both too deferential to the Trump Administration and also not deferential enough.

Adam J. White is a research fellow at the Hoover Institution and an adjunct professor at George Mason University’s Antonin Scalia Law School.

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