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Just three weeks in, the Trump administration has tested the limits of executive power, violated the separation of powers and shaken the very roots of the Constitution. A particular theme of President Trump’s first days in office has been contempt for the judicial branch as a check on his authority: He criticized individual judges, preemptively blamed them for all future terrorist attacks and ridiculed the court system as “disgraceful.”
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.
The only way to demonstrate the independence necessary is for Judge Gorsuch to answer specific questions about the judiciary and his judicial philosophy. Of course, a judicial nominee should not prejudge how he or she would rule in a specific case to come before the court, but that does not preclude the nominee from answering basic and specific questions about judicial philosophy or how he would have decided past cases. Doing so would make the nominee no more biased than any of the justices who now sit on the court and issued opinions in those cases.