A Followup on “Trump v. Judiciary”

To follow up quickly on yesterday’s post concerning “Trump v. Judiciary,” reports are out that Supreme Court nominee Judge Neil Gorsuch called President Donald Trump’s recent attacks on the judiciary “disheartening” and “demoralizing.” Trump, naturally, is going after the Democratic Senator who leaked Gorsuch’s statements; to attack Gorsuch—a judge highly favored by social and religious conservatives—would be grossly inept, even for Trump.

The nature of Trump’s attacks on the judiciary boils down to the fact that the President believes the courts are political. Well, of course they are—just don’t tell other lawyers and judges that. Despite some naysayers on the sidelines, the American legal system still functions on the idea that laws can be mechanically applied by the judiciary with lawyers serving as advocates for what that application should look like. Even if this rather naïve view holds true at the local level, the bald politicization of the federal judiciary is hardly a recent development. One of the greatest disservices done to law students is to still teach them that the federal courts are legalist in nature, but I am getting away from my point.

Even assuming Gorsuch used the words “disheartening” and “demoralizing,” that doesn’t say a whole lot about what he will do when he finally gets on the Supreme Court. There are plenty of judges who believe that other judges are “political” while they themselves remain “legal”; perhaps Gorsuch will tell himself that Trump is only attacking “political” judges, such as those of the Ninth Circuit, and not “legal” judges such as himself. That is not to say that Gorscuh, once confirmed, will rubberstamp everything the Trump administration sends the Court’s way. As an Originalist of sorts, Gorsuch is probably not a fan of Trump’s expansionist views of executive power, though he may be less bothered than many liberals about Trump’s national security agenda. But in the end Gorsuch is just one man; his presence on the highest court of the land won’t do enough to change the ideological temperament of the federal judiciary, one that appears to be at odds with any attempt to target foreigners on the basis of ethnicity and culture (or religion?).

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