Does Gorsuch's Trump criticism mean he could be court swing vote?
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Like most progressives, I was both surprised and pleased that in a meeting with Sen. Richard BlumenthalRichard (Dick) BlumenthalSenators push FTC to finalize changes to contact lens rule Trump rule change ignites safety debate Blumenthal: ‘No question’ evidence connects Manafort with criminal wrongdoing MORE (D-Conn.) to discuss his nomination to the Surpeme Court, Judge Neil Gorsuch criticized President Trump's attacks against the federal judiciary.

This raises the intriguing question of how far, if at all, Gorsuch would deviate from an all-encompassing conservative line if he is confirmed to the Supreme Court, and what Senate Democrats and liberals should make, if anything, of Gorsuch's criticism of Trump as they decide whether to support, oppose or filibuster his nomination.

Earlier this week, Joel D. Joseph, a contributor to The Hill, wrote here asking "Is Gorsuch a secret liberal? Trump, GOP have reason to wonder." While I was not persuaded by Joseph's case, I was intrigued by the points he raised, and believe they should be read and considered by all.

Gorsuch does not have a long record of major judicial decisions, which means it will be very hard to know with any confidence how he would decide cases before the Supreme Court.

Joseph makes some important points in his contributor piece, and offers some facts that are correct, but I would pose the question slightly differently.

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What are the chances that Gorsuch would be either a justice with the hardline conservative original intent philosophy of the late Justice Antonin Scalia, a swing-vote justice in the mold of Anthony Kennedy or a surprise liberal justice similar to former Justice David Souter?

 

My own view is that the chance that Gorsuch turns out to be a liberal similar to Souter is zero, but the chance that he turns out to be a swing-vote justice more like Kennedy than Scalia is within the realm of possibility.

Let me be as strong as I can about this: Trump, in my view, poses a potentially grave threat to core values of democracy, justice, civil liberties and the rule of law in America. Seemingly every day, Trump attacks another lawmaker, whether Democrat or Republican; a federal judge; a great American company that stops selling daughter Ivanka Trump's products; or a democratic ally of America.

Trump's enemies list is much longer than Richard Nixon's, and we know how Nixon's presidency concluded.

Beyond this, Trump has attacked the free press repeatedly and often by making claims in his attacks that are grotesquely untrue.

Even more troubling, Trump has attacked the federal judiciary, slandering one federal judge by calling him a "Mexican," insulting another by calling him a "so-called judge" and criticizing the court of appeals adjudicating the issue of the stay of his executive order on immigration even before that court of appeals has rendered a decision.

Few things are more dangerous to American liberty and justice than an authoritarian president who attacks both the free press and the federal judiciary and treats anyone who disagrees with him as an enemy.

The fact that Gorsuch criticized Trump for attacking the federal judiciary is important, and the fact that Gorsuch has not backed down after Trump commented on this suggests something positive about the Supreme Court nominee, whatever position I and other progressives might take about his nomination.

What the court needs, in my view, is another liberal justice such as Ruth Bader Ginsburg. But that is not likely to happen during the next four years when a Republican will be president.

The next best thing for the court would be a justice who judges in the swing-vote style of Kennedy. It is interesting that Gorsuch clerked for Court of Appeals Judge David Sentelle, a judicial archconservative by progressive standards, but also clerked for former Supreme Court Justice Byron "Whizzer" White (a President John Kennedy appointee) and clerked for Justice Anthony Kennedy as well, who were both centrist swing vote centrists.

Gorsuch appears to be a jurist who is willing to speak his mind, as he did when he criticized Trump. From what we know of his career, my guess is that during confirmation hearings, Gorsuch will be asked — and may often directly answer — some very hard questions about his views on Trump and what he represents.

Democratic senators will certainly ask the hard questions during his confirmation hearing, and the answers Gorsuch gives will be fascinating and enormously important to his prospects for confirmation — and possibly the future of the nation, with a president who constantly attacks the checks and balances that are more urgently needed than ever.

Brent Budowsky was an aide to former Sen. Lloyd Bentsen (D-Texas) and former Chief Deputy Majority Whip Bill Alexander (D-Ark.). He holds an LL.M. degree in international financial law from the London School of Economics. Contact him at brentbbi@webtv.net.


The views of contributors are their own and not the views of The Hill.