The next Supreme Court justice must be a check on an out-of-control president.
By SEN. CHUCK SCHUMER
February 07, 2017
In a little more than two weeks, President Donald Trump has put an unprecedented strain on the Constitution. He’s unleashed a flurry of legally dubious executive orders, including his travel ban designed to keep people from seven majority-Muslim countries from entering our country. This violation of America’s laws—and values—has already been stayed by several courts. In response, President Trump has engaged in attacks on the independence of our nation’s judiciary. Just this weekend, he impugned the “so-called judge” who struck down the president’s travel ban.
These actions show a lack of respect for the separation of powers—and that’s why Senate Democrats will do everything we can to make sure that the next Supreme Court justice will be an independent check on an out-of-control executive.
Yesterday, Republican Leader Mitch McConnell claimed that Senate Democrats are threatening to hold up a Supreme Court nominee just to hurt President Trump. That flies in the face of the facts. We are working to protect the American people from President Trump’s dangerous disregard for the separation of powers. Conservatives understand what is at stake here. John Yoo, the Bush administration attorney who advocated expansive executive authority said this weekend: “[E]ven I have grave concerns about Mr. Trump’s uses of presidential power.” And the conservative legal scholar Eric Posner opined that the president’s assault on the independent judiciary poses such peril for our constitutional democracy that Judge Gorsuch “must publicly condemn the president’s attack on the judge who blocked his immigration order.”
The Supreme Court, now more than ever, demands a higher level of scrutiny than lower court positions. Senators from both parties have long recognized this. The Republican leader and several other Republicans supported the nomination of Sonia Sotomayor to be a district judge for the Southern District of New York, then opposed her nomination to the Supreme Court. Senior Republicans supported the nomination of Elena Kagan to be our nation’s chief lawyer, but then opposed her nomination to the Supreme Court. And shortly after each was nominated to the Supreme Court, Sen. Mitch McConnell clearly stated that he was open to filibustering both of their nominations.
What should really concern Republicans is the fact that President Trump is trying to rewrite the Senate rules for them. He’s demanded the Republican leader deploy the so-called nuclear option weeks before a hearing on the nomination has even been scheduled. He took a Supreme Court nominee part and parcel from a right-wing outside group. He has issued alarming and far-reaching executive orders to the deafening silence of the same Senate Republicans who were up in arms over any executive order from the Obama administration. In short, President Trump is running the Republican Senate agenda—and now he wants them to rubber stamp his nominee to the Supreme Court. That is simply unacceptable.
Nominees to our nation’s highest court must demonstrate that they are mainstream and independent enough to earn the support of at least 60 senators from both parties. Both of President Obama’s nominees to the Supreme Court exceeded that level of support. The simple question we are asking is: Can President Trump’s nominee meet that same test? If the nominee fails to meet 60 votes, the answer isn’t to change the rules; it’s to change the nominee.
This is not unfair or obstructionist—this is the Senate doing its job by critically evaluating a nominee who will have immense impact on the lives of Americans. The most important factor in assessing a Supreme Court nominee in the time of the Trump administration is whether or not the potential justice will be an independent check on an executive who may act outside our nation’s laws and the Constitution. It remains to be seen if Judge Gorsuch is able to fulfill that important constitutional role.