The 9th Circuit decision to reject President Trump’s ban on immigration and travel from seven majority-Muslim countries has ratcheted up the pressure on the Senate and its consideration of Judge Neil Gorsuch’s nomination to the Supreme Court.
Trump’s suggestion Thursday night that he would appeal the appeals court decision to the Supreme Court demonstrates the importance of the high court’s role in serving as either a check or rubber stamp on a president’s power.
Right now, the Supreme Court could deadlock on a decision with a 4-4 split while the vacancy left by the late Antonin Scalia’s seat remains open. But with the prospect that Trump could rewrite the executive order in a more narrow way, as respected Harvard law school dean Alan Dershowitz has suggested, he could try to wait until Gorsuch is seated on the Supreme Court.
That interim rewriting period, however, could in turn backfire on Gorsuch’s chances of winning Senate approval, as senators further scrutinize the nominee’s ability to act independently from the president.
Senate Minority Leader Chuck Schumer, D-N.Y., Thursday night called on Trump to “see the handwriting on the wall that his executive order is unconstitutional.”
“He should abandon this proposal, roll up his sleeves and come up with a real, bipartisan plan to keep us safe,” he said.
Schumer several times this week said he was unsatisfied with Gorsuch’s response to a direct question about the Constitutionality of a broad Muslim ban, without getting into the specifics of Trump’s executive order.
Supreme Court nominees abide by judicial ethics rules that prohibit them from giving opinions about cases that could come before the high court, but Schumer nonetheless has repeatedly criticized Gorsuch for evading the question about a Muslim ban. And other Democrats will undoubtedly hone in on the same question after the 9th Circuit ruling.
Senate Democratic Whip Dick Durbin, D-Ill, said the 9th Circuit decision is critical “on the merits but equally important in the sweep of history in asserting the independence of our judiciary.”
The Alliance for Justice, which has called on Democrats in Congress to fight a conservative takeover of the judicial branch since Trump’s election and is urging Democrats to take a hard line against Gorsuch, Thursday night said the appeals court rejection of the immigration and travel ban only amplifies the importance of the battle over Trump’s Supreme Court nominee.
“Of course, all eyes are now on the Supreme Court, not just because this case could well be headed there – but also because we have a nominee about to be considered for a seat on the Supreme Court,” AFJ President Nan Aron said in a statement.
“And it’s more important than ever that the nominee, Neil Gorsuch, answer all questions about whether he can be an independent check on an executive whose disregard for the law has put his administration in crisis-a-day mode,” she said.
Gorsuch’s independence from Trump was hotly contested in the Senate over the last 24 hours after Sen. Richard Blumenthal, D-Conn., who sits on the Judiciary Committee, disclosed that Gorsuch had told him that Trump’s attacks on judges, including the judge who first issued the stay on Trump’s immigration ban, are “disheartening” and “demoralizing.”
But Schumer said those remarks from Gorsuch, made during several private meetings with Democratic senators, could have been orchestrated from the White House and were not enough for him to prove that he could truly exercise independence from Trump when weighing the legality of his administration’s policies.
“To whisper in a closed room behind closed doors that ‘I am disheartened’ and not [publicly] comment on what the president has done … does not show independence,” Schumer said. “It shows a desire to have an appearance of independence.”
Democratic strategists argue that the fight over Gorsuch is only in its beginning phase and will likely intensify over the next month as senators move through other nominations and focus on this lifetime appointment to the high court and its ramifications.
“What happens 24 hours from now when the president decides to tweet something different?” Erik Smith, a veteran Democratic strategist who served as a senior messaging adviser to President Obama 2012 re-election campaign, told the Washington Examiner. “There are no traditional rules for political warfare – we’re not playing by those rules anymore.”
“I don’t think a lot of Democrats are in a position to give [Gorsuch] a pass” given Republicans’ decision to block Obama’s choice of Merrick Garland last year to fill the Supreme Court vacancy left by the death of Antonin Scalia, added longtime Democratic Senate operative Jim Manley, who now serves as the director of QGA Public Affairs.
“There may have been a predisposition in years’ past to give the president deference when it comes to Supreme Court nominees – but that’s all in the past…we’ll just have to wait and see. The Senate is in the process of spiraling out of control,” he added.
Manley was referring to the highly polarized atmosphere in the Senate so far this year as Democrats have put Trump’s nominees through the paces, using delaying tactics and in some cases staging committee boycotts of votes on nominees they consider entirely unqualified for the Cabinet posts Trump appointed them to head.
On that point, Sen. Bill Nelson, D-Fla., one of the Democrats from swing states that voted for Trump that Republicans are targeting on Gorsuch, told the Washington Examiner Thursday that he didn’t think it’s necessary for him to apply the same voting standard to Gorsuch that he did when the Senate considered the nomination of now-Supreme Court Justice Samuel Alito in 2006.
Back then, Nelson ultimately voted against Alito on the final passage of his confirmation but said it was important for him not to support a Democratic filibuster to ensure that Alito could get a straight up-or down vote in the full Senate.
He bucked an attempted filibuster against Alito proposed by Massachusetts Democratic Sens. Ted Kennedy and John Kerry by voting in favor of cloture, a vote that requires the support of 60 senators to overcome.
Nelson now says he doesn’t remember whether or not he voted for cloture on Alito and believes Gorsuch needs to garner enough votes to break a filibuster.
“What the 60-vote threshold does is that it forces bipartisan compromise and therefore you get more of a mainstream Supreme Court candidate,” he said.
