Why I Cannot Make An Informed Choice About Judge Neil Gorsuch
I get much of my news from the New York Times. This morning, the paper published an editorial titled, “Liberals Should Back Him,” by Neal K. Katyal, an acting solicitor general for the Obama Administration. Katyal argues the Senate should confirm Neil Gorsuch, Trump’s nomination to the US Supreme Court.
I must admit I found myself terribly confused by the editorial. As much as I want to believe him, the events of the first week and a half of the Trump presidency have left me angry and unnerved. Last week, the federal government invalidated the legal visas and green cards of hundreds of thousands of predominantly Muslim refugees and immigrants who had taken all appropriate steps to lawfully enter, live and work in this country. When President Trump signed an executive order barring people from rejoining family members here, or returning to college and graduate school or otherwise escaping persecution abroad, he upended our immigration system. He also destroyed a process that, as Americans, we hold dear and that recognizes the right to immigrate here after enduring rounds and rounds of extensive vetting.
We are learning the hard way that when Donald Trump makes statements like, “we don’t know who these people are,” he is flagrantly and openly lying to us. Refugees undergo a painful screening process, many living in refugee camps for years, before they learn whether the United States has accepted them for entry. For people everywhere, America has typically represented a ray of hope in a dangerous and precarious world. When people choose to come to America, it is because they believe the nation will grant them a chance to live a decent, humane, sane life. Immigrants of every country who receive permanent residency status, or green cards, typically share most of the rights and privileges of Americans save for the right to vote. They are on track to becoming citizens in a matter of years. When Donald Trump denies them these rights, turns them away at the border and at airports and returns them to home countries, he violates that trust and faith, internationally, that people have in the United States.
By setting fire to the immigration system, Donald Trump has changed America. He has signaled he has no respect for the rights and responsibilities of his office because he has turned the immigration system into a political organization that serves his ends. Those ends appear mainly to be scoring points with a rising white supremacist base and fan club.
I am an Indian immigrant to this country. I arrived in the United States in 1993. Since then, through my work as a journalist and in the course of my education, I have tried to be an independent thinker. Indeed, this is something I value most about America’s democratic ideals — that religious freedom was the basis for the nation’s independence. As far as the US Constitution goes, independent judgment was sacred to our founders.
But Donald Trump has no interest in any of that. His ban on Muslims, which is essentially what his executive order amounts to, and the nativist and white nationalist impulses he and his inner circle have unleashed, lead me now to be deeply suspicious of everything he does. Opinions like Katyal’s, an Indian-American like myself, do not provide clarity. Instead, they are beginning to spur my own befuddlement and self-doubt. I just don’t know what to believe. Given the strain of white nationalism that Trump represents, how can I be sure that Neil Gorsuch is not a closeted one himself?
It may seem outlandish that I have such doubts about a federal judge whose duty it is, after all, to uphold the law. But the trend I have witnessed in the past week and half has damaged my confidence in government. Without knowing Gorsuch personally, I don’t think it is unreasonable anymore to account for this possibility.
Furthermore, as I am not a lawyer, I have to rely on cues to form opinions and judgments based on snippets of information I learn. In the old America, this sort of judgment was sufficient. I could feel informed, despite my lack of expertise in a particular subject even as difficult and complex as the law. Although I have earned two master’s degrees, I know very little about how lawyers relate to one another, and so I have to rely on people like Katyal for substance, for guidance, and to make informed choices. But because of the deep mistrust Trump has now sowed since taking office, I can no longer do that. Whose words do I trust? Whom should I believe? How do I know that when Katyal says, for example, that Gorsuch “criticized the legal doctrine that federal courts must often defer to the executive branch’s interpretations of federal law,” that this means he will uphold the authority of the judicial system in the face of executive orders that seek to undo the rights of immigrants like myself? How can I be sure of it? How can I be clear?
When Katyal writes that Gorsuch’s record “should give the American people confidence that he will not compromise principle to favor the president who appointed him,” why should I believe him?
I know I am not alone. Most of us rely on the assessments that others make, on the opinions of those we trust and on the judgments of people with greater expertise than ourselves. But we are now treading perilous new ground. It is not yesterday. Things have changed.
I recognize Katyal probably presents an accurate picture of Neil Gorsuch, given his own interactions and his understanding of him. But circumstances reflect there is little doubt our Supreme Court will be politicized in the months and years ahead. Its legitimacy may be tested. There will likely be several lawsuits to challenge Donald Trump and his executive orders in court. Judge Byron White, who Neil Gorsuch clerked for in the past, made a few statements during the course of his term on the Supreme Court that I find intriguing, to say the least. According to the New York Times,White apparently stated that, “judges have an exaggerated view of their role in our polity.” He also believed that the Supreme Court ought to defer to judgments reached by Congress and the executive branch.
To lawyers, this sort of rhetoric and open exchange of ideas is consistent with the practice of the law. Attorneys argue cases in court based on precedents and legal principles, and agree or disagree on legal matters depending on how they interpret the Constitution. They make powerful, reasonable assertions and they back up what believe. Independent judgment is, of course, a cornerstone of this sort of work. But for someone like me, who does not study the law, I have to rely on their articulations of their own disagreements much of the time.
In a charged political setting, will Neil Gorsuch still “believe” in the law in the manner that Katyal says he will? Does he concur with the late Byron White who wanted some disagreements to be adjudicated in Congress and the public sphere? Will he bend to Donald Trump? Will he have ideas of his own about how to address a possible constitutional crisis? After all, White was his mentor. How do I know how Gorsuch will act when confronted by an indecorous, brash and rude Donald Trump, when Gorsuch’s own manner is as polite as it appears to be. Given the circumstances we face, will Gorsuch fold under political pressure?
Masha Gessen recently pointed out Donald Trump’s arrival on the political scene has disintegrated public speech and language. She believes he is hollowing out our discourse, and depriving us all of exchanging ideas meaningfully. I agree with her more deeply as the days wear on. I find myself woefully incapable of making good sense of people like Gorsuch in public life. And I have pressing questions. As an example, I want to know whether Gorsuch will stand up for people like me.
In a moment like this one, lawyers’ opinions cannot be interpreted the same way they once were. Katyal’s assessments of Gorsuch feel like opinions at best, because it is unclear what role the judiciary will have under the Trump administration. They may be called upon to act in unforeseen ways, to take on a demagogue who does not believe in its mission and purpose. Trump may want to negotiate directly with Gorsuch in closed door meetings, for example. Will Gorsuch refuse? Or Trump may decide to publicly attack Gorsuch on Twitter, or threaten him with “betrayal” or treason. As far as Justice Antonin Scalia goes, he may have been many things but he was not a bigot. He was also not mild-mannered, which is what liberals often found alluring about him despite his contentious politics. Suddenly, these character judgments and personal qualities will matter more than they have in the past. Scalia was also forceful about what he believed. Will Gorsuch be so as well?
In the current climate, anyone who supports or relates to Donald Trump, even as an appointee to the US Supreme Court, may either be a closeted white nationalist or otherwise become complicit in helping one consolidate power. And the implications of that are deeply troubling to me, and to many others like me, for whom being a naturalized American has now become politicized.