As president, Trump has demanded loyalty and criticized appointees from failing to support him. With his Supreme Court pick set to be announced tonight, the task of safeguarding the independence of the judiciary, essential to upholding the integrity of the court and the constitutional framework of the United States, falls to the Senate.
Among the grievances against King George III outlined in the Declaration of Independence was “he has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.”
When the Framers drafted the Constitution, an independent judiciary was understood as key to maintaining the functioning of the U.S. system of constitutional democracy. Indeed, as Alexander Hamilton argues in Federalist No. 78., “The complete independence of the courts of justice is peculiarly essential in a limited Constitution.”
Trump, however, has a checkered record when it comes to demonstrating his acceptance of an independent judiciary. He disparaged Indiana-born U.S. District Judge Gonzalo Curiel, who presided over the Trump University case, as a “Mexican,” saying that the judge ought to be looked into. He undermined the credibility of U.S. District Judge James L. Robart, who issued an injunction against the first version of the travel ban, referring to him as a “so-called judge.” More recently, he considered revoking his nomination of Justice Neil Gorsuch after he made remarks critical of the president’s comments on the federal judiciary.
Given such a record, the Senate, beginning with the Judiciary Committee, must hold the president and his nominee accountable and ensure that the nomination process remains free from pledges of loyalty or private agreements to the president. Although such independence is likely impossible to guarantee, the task of pressuring the president and his nominee to recognize and uphold the independence of the judiciary is crucial.
To do so, the Senate must make a decision independent of the president. After all, the Constitution’s mandate that “the President shall have the power… by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court” is not meant to be a toothless rubber stamp of the president’s nominee, but rather a key step in insuring the integrity of the nation’s highest court.
