Why Gorsuch should condemn Trump

Some people have said that because we normally don’t expect nominees to the Supreme Court to take “partisan” positions or to take a position on a pending case, Gorsuch should keep silent on Trump’s “so-called judge” remark. But I did not say that Gorsuch should condemn the immigration executive order, which (indeed) I have said I believe is legal. Gorsuch is within his rights to refuse to comment on it, and, in fact, should refuse to comment on it.

What makes this case special is Trump’s “so-called judge” remark, which is clearly an attack on the independence of the judiciary. The immediate effect of it is bad enough: it may embolden Trump loyalists in the executive branch of the government to disregard judicial orders. The long-term effect will be to set up a pitched battle between the executive and the judiciary, which will damage the reputation of both. Already, the court of appeals will need to worry that if it rules against Judge Robart (as perhaps it should, on the legal merits), it will validate Trump’s attack on the judiciary in the public mind, while if it does not, the court of appeals will be seen as a partisan enemy of the president.

Gorsuch occupies a special position because he is the only judge who Trump has endorsed in an official action. By nominating Gorsuch to the supreme court, Trump has committed himself to the position that Gorsuch is a man of integrity and judgment. If Gorsuch condemns the “so-called judge” remark, and Trump retaliates by withdrawing the nomination, then Trump is condemning his own judgment. If Gorsuch bucks Trump—in the process, taking a very significant risk that he will lose the prize that Trump is holding out for him—the seriousness of Trump’s reckless behavior will be clear to all.