Statement of CFJ President Curt Levey:
Following President Trump's criticism of U.S. District Court Judge James Robart for his halt of the president's immigration order -- a ruling issued without any accompanying legal analysis -- key Senate Democrats are threatening to use the remark against Supreme Court nominee Judge Neil Gorsuch.
Senate Minority Leader Chuck Schumer wants to use the remark to "raise the bar even higher for Judge Gorsuch's [confirmation]." Both Schumer and Judiciary Committee ranking member Patrick Leahy now promise to question Judge Gorsuch's "ability to be an independent check" on the executive branch.
Seemingly unaware of the obvious hypocrisy, Schumer, Leahy and other Democrats accuse President Trump of questioning Judge Robart's legitimacy while doing the same to Gorsuch, a U.S. Court of Appeal judge. To question Judge Gorsuch's ability to remain "independent" is to question his ability to do his job as a judge.
These Democrats also seem to have forgotten that they cheered President Obama's attempt to bully the Supreme Court during his 2010 State of the Union address, when he denounced and falsely characterized the Court's Citizens United decision while the Justices sat just yards away. Chief Justice John Roberts said he found the intimidation "very troubling."
Senate Republicans did not threaten to raise the bar for Elena Kagan, when President Obama nominated her to the Supreme Court just months after his controversial State of the Union speech. Republicans could have but did not argue that Obama's unprecedented criticism of the Justices cast doubt on Kagan's independence and made her confirmation more problematic.
Senate Democrats would be well advised to follow the example set during the confirmation process for Justice Kagan by focusing on Judge Gorsuch's record and qualifications, rather than using the process to express their unhappiness with President Trump.