Neil Gorsuch‘s road to the Supreme Court was always going to be tricky. Nominated by a man who has personally attacked judges when he’s worried they won’t agree with him, Gorsuch was going to have to tiptoe around President Donald Trump‘s disregard for judicial independence. But when Gorsuch spoke out against Trump’s judicial criticism during private meetings — and the President fired back on Twitter — it showed the stakes of the game on both sides.
The seeds for the current controversy were arguably sown last summer, when then-candidate Trump called into question the objectivity of U.S. District Judge Gonzalo Curiel in hearing a case against Trump University. Curiel’s crime? His Mexican heritage. Maybe senators meeting with Gorsuch would have overlooked Trump calling Curiel a “hater” — that was almost 10 months ago, and so much has happened since then. But last week, Trump once again attacked a judge hearing a separate case against him, tweeting, “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” (The judge had blocked Trump’s executive order barring immigration from seven Muslim-majority countries.)
Now Gorsuch was in a bind. If he didn’t condemn Trump’s comments in his private meetings with senators, he might be seen as too cozy with the Administration. Plus, criticizing the comments could help him win over wary senators. But if he did denounce the President’s statements and Trump heard about it, he might risk alienating and angering a famously capricious leader.
He decided to speak out.
Connecticut Democratic Sen. Richard Blumenthal told reporters after his Wednesday meeting with Gorsuch that the nominee had “expressed to me that he is disheartened by the demoralizing and abhorrent comments made by President Trump about the judiciary.” Ron Bonjean, a spokesman for Gorsuch during the Supreme Court confirmation process, then confirmed to CNN that Gorsuch used the words “disheartening” and “demoralizing” to describe Trump’s tweet.
But the next morning, Trump contradicted Bonjean, saying that Gorsuch’s comments were “misrepresented,” scrambling the coherence of White House messaging on the comments. “Sen.Richard Blumenthal, who never fought in Vietnam when he said for years he had (major lie),now misrepresents what Judge Gorsuch told him?” he tweeted.
Notably, Trump’s tweet went after Blumenthal, not Gorsuch. But it shows the tough spot Trump is in, too. If he pulls Gorsuch’s nomination, he’ll look petty and appear to be undermining the independence of the judicial branch. If he lets the narrative spread that Gorsuch is speaking ill of him behind closed doors, he could look weak — the descriptor he hates most.
Meanwhile, Nebraska Republican Sen. Ben Sasse has also come out and said that Gorsuch made similar comments in their one-on-one meeting. “This is a guy who kind of welled up with some energy and he said any attack on any, I think his term to me was brothers or sisters of the robe, is an attack on all judges and he believes in an independent judiciary,” Sasse said Thursday on MSNBC’s Morning Joe.
Gorsuch will have to continue walking this tightrope as he meets with more senators during the confirmation process. Now that his views on Trump’s tweets are known, is there any harm in continuing to express them? Maybe. Is there a way to pretend they didn’t happen? Probably not.
“With the President’s attacks on federal judges, senators from both parties will be more focused and more concerned about the ability of Neil Gorsuch and the Supreme Court to provide an independent check on executive branch activity,” said Nan Aron, president of progressive judicial advocacy group Alliance for Justice. “[It’s] a particularly urgent context.”