Judge Gorsuch’s Smart Political Move in Distancing Himself–Just a Bit—from President Trump

In a meeting with Senator Blumenthal, Judge Gorsuch said he was “demoralized” and “disheartened” by the President’s attack on the judiciary (presumably not only in relation to the current dispute over the executive order on immigration). The statement was not in public, but confirmed by a spokesperson.

This is a smart political move by Judge Gorsuch, and I have little doubt this was strategized and vetted with the team seeking to secure his nomination.

Here’s the calculus: Democrats are going to hammer away at Judge Gorsuch’s hearings on what he thinks of Trump and the rule of law. Simply stonewalling on the issue would not be well received, not only by Democrats on the committee by by the American people. He’s got to give some response.

And this is the perfect response politically. It expresses disappointment with restraint. It is not, as some have said, that the president’s attacks on the judiciary are “dangerous” or “unprecedented” or poised to precipitate a constitutional crisis. This is about the least he could get away with saying while still criticizing. And any more could undermine his standing with the President. So it puts him in the sweet spot.

Now you might say that why would Republicans care about what Democrats and the public think? They have enough votes to force him through, potentially using the “nuclear option” (as urged by the President himself) to eliminate the filibuster.

That’s true, but Republicans would much rather hold their fire. It would look much better if they get some Democratic votes of a Joe Manchin or others. And the nuclear option would make the difficult conditions in the Senate more toxic. There will be more Senate business to conduct, and lots of judgeships and other things coming through the pike. Democrats have little power but they can still make noise and potentially muck with the workings of the Senate.

At the hearings, I expect regardless of how many ways and how many times Democrats ask, Judge Gorsuch will not go much beyond “disheartening” and “demoralizing.” I’m sure those are correct sentiments, but I guess, like most who care about the federal judiciary he feels more strongly than that, and has been counseled to hold his fire.

There is someone else who should speak up for an independent judiciary, and that’s the Chief Justice. I don’t think he will (he did not say anything after the attack on Judge Curiel), but it is the right thing to do.

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