“To preserve our civil liberties,” Supreme Court Justice Neil Gorsuch remarked in an address last week, “we have to constantly work on being civil with one another. . . . In a very real way, self-governance turns on our ability to try to treat—to try at least to treat—others as our equals, as persons, with the courtesy and respect each person deserves, even when we disagree.”
Gorsuch was speaking at a luncheon celebrating the Fund for American Studies on its 50th anniversary. We included excerpts of the address in our print magazine. The speech generated protests on the grounds that it took place at the Trump International Hotel in Washington. The protesters’ reasoning goes something like this: Since the president’s property holdings are the subject of several lawsuits, and since one or more of those lawsuits may come before the Supreme Court at some point in the future, Justice Gorsuch should have avoided speaking in any venue with financial connections to the Trump family. (The protesters also objected to Gorsuch speaking to a conservative group, but justices speak to ideologically likeminded groups all the time.)
The lawsuits in question are based on the constitution’s “title of nobility” clause banning federal officials from accepting any “present, emolument, office, or title” from any “king, prince, or foreign state.” Foreign countries do business at Trump hotels; ergo Trump stands in violation of the constitution.
That strikes us as weak. In context “emoluments” clearly means something like a financial gift and not an ordinary business transaction. In any case, the idea that a judge or justice would be swayed in such a case by the fact that he once delivered an address in a Trump hotel is preposterous. Senate minority leader Chuck Schumer’s remark on the controversy—that Gorsuch’s decision to speak at the event illustrates “everything that was wrong with his nomination”—cleverly uses the word “everything” as a substitute for a non-existent argument.
None of this has anything to do with Gorsuch’s independence or lack of it, or the constitution’s emoluments clause. These protests—and we assume there will be others—are intended to discredit Justice Gorsuch and so provide a feasible excuse for Democrats to block any second Supreme Court nomination by this president. Depend on it: If President Trump has occasion to nominate another judge to the high court, the argument proffered by his opponents for blocking that nomination will be that Neil Gorsuch isn’t sufficiently “independent.” Look, they’ll claim, he hangs out with right-wing groups in Trump hotel ballrooms.
We hope the tendentiousness of this complaint will appear as plainly in the future as it does now.
If Gorsuch’s critics are searching for improper remarks made by Supreme Court justices, they ought to consult Justice Ruth Bader Ginsberg’s open hostility to the current president. In July of 2016, she famously expressed her loathing of the president’s candidacy to the New York Times. “I can’t imagine what this place would be—I can’t imagine what the country would be—with Donald Trump as our president,” she said. She followed up these remarks by calling the presidential candidate a “faker” and complaining that he “has no consistency about him. He says whatever comes into his head at the moment. He really has an ego.” And only last week she suggested to Charlie Rose that sexism was a “major, major factor” in the outcome of the 2016 election.
Whether Justice Ginsberg is right or wrong about Trump and the election is immaterial. We find it hard to disagree with her charge that Trump has no consistency and says whatever comes into his head. But of course it’s wholly improper for a Supreme Court justice to make such comments. Her decisions on cases involving the administration can now be plausibly dismissed as partisan hackery.
And yet we’re to believe it’s Gorsuch, not Ginsberg, who lacks independence.
The main point of Gorsuch’s address, meanwhile—that self-governance requires an ability to “treat others as our equals, as persons, with the courtesy and respect each person deserves, even when we disagree”—seems acutely relevant.
