As you listen to the upcoming Senate Judiciary Committee hearings, on the nomination of Judge Neil Gorsuch to be an associate Justice to the Supreme Court, pay very close attention to the holding in the majority opinion, in the Supreme Court’s 2002 decision, in Republican Party v White. The majority opinion in White was written by one of Judge Gorsuch's judicial heroes, none other than Antonin Scalia. In fact, if confirmed, he will take Scalia's seat on the court.
Supreme Court Justice Anthony Kennedy, who Judge Gorsuch clerked for, before being appointed to the 10th Circuit Court of Appeals, wrote a concurring opinion in White. If confirmed Gorsuch will be the first former Supreme Court clerk, to sit on the court with a Supreme Court Justice that he formerly clerked for.
In an earlier piece I wrote, on judicial elections, and the White decision, I bemoaned the fact that judicial candidates, in Gorsuch's case, a judicial nominee for a seat on the Supreme Court, frequently ignore the White decision, claiming they are precluded from offering their opinions on the hot button political, social, and legal issues of the day. Any nominee or candidate for judicial office who asserts such a position, is either badly informed on the law, or intentionally evading the truth, to avoid answering the proposed questions on their merits. In White, the court held, that judicial candidates have the very same First Amendment right to give their opinions, as any other candidate running for office.
Scalia wrote, as follows: "The Minnesota Supreme Court's canon prohibiting candidates for judicial election from announcing their views on disputed legal and political issues violates the First Amendment." In an equally clear statement by Justice Kennedy, he stated: "The political speech of candidates is at the heart of the First Amendment, and direct restrictions on content of candidates speech are simply beyond the power of government to impose. "
In White the court made it clear that judicial candidates are free, as an example, to “announce” their views on controversial issues like the death penalty, gay rights, executive privilege, reparations for African-Americans, jury nullification, the appropriateness of building a wall between the U.S. and Mexico, to prevent passage by citizens of Mexico, or other countries, into the Untied States. The only prohibition on a judicial candidate, or nominees' free speech, is a statement made by the nominee “committing’ to rule on a specific case in a particular manner. As an example, a nominee is absolutely free to "announce" his views for or against the death penalty, for or against LGBTQ rights, but is at risk of recusal, or disqualification from hearing a specific cases, (for example Mr. X’s death penalty case) if he "commits " to how he would rule on a particular death penalty case, or a specific LGBTQ case, that might come before the court in the future.
Bottom line: If you hear nominee Gorsuch respond to a member of the judiciary committee, that he can't give his personal views on the hot button political, social, or legal issues of the day, know he is misstating the truth, or telling an outright lie. Not only does Judge Gorsuch know better, but also two of his mentors, penned opinions, in the very case (White), that guarantees his right to speak his mind on the issues. We must demand that members of the judiciary committee waive the White decision in Gorsuch’s face, every time he attempts to avoid the senate committee's direct questions. We cannot allow political and partisan handlers to coach Gorsuch into making a mockery of our democracy.
Without a doubt, Gorsuch, who fashions himself a First Amendment champion, in his jurisprudence, is intimately familiar with, and understands the nuance of the ruling in White. If any judicial nominee in history should be held to the transparency standard demanded by White, it is Judge Gorsuch. Not only does Gorsuch have a First Amendment right to answer the questions, put to him by the committee, but also the people of this country have a right to be fully informed on his views, before he is confirmed for a lifetime appointment to the highest court in our land.
We the people should use all of the social media tools at our command, to draw the Senate Committee’s attention to the ruling in the White case. We should use these tools, like Twitter, to tweet the questions we want answered by the nominee. If the Judiciary Committee is too squeamish to do their job, or is hamstrung by partisan procedural rules, or other obstacles, we must do their job for them.
