(Cross-posted on Just Security)
Here’s a list of questions I hope will be asked of Judge Neil Gorsuch, the President’s nominee to fill the vacant Supreme Court seat, at his Senate confirmation hearing. Most of these questions are related to security, individual rights, executive authority and requirements that the President serve without conflicts of interest. That these are necessary questions raises a larger question about whether, to paraphrase Benjamin Franklin, we will keep the Constitutional republic our Founders entrusted to us, as the President’s first weeks in power raise serious doubts about whether he intends to honor the law in all of these areas. The hearings come at a provident time and provide a much-needed opportunity to have a vigorous debate on Presidential power, made more meaningful by the fact that a Justice Gorsuch will likely join a Court that will make historic decisions on Executive authority.
1. Is it inappropriate for the President to demean and attempt to subvert the authority of judges who rule against him? (Credit for this question goes to Steve Vladeck who suggested this in the wake of the President’s reaction to Judge Robart’s stay of the Executive Order on travel). Are you troubled that the President has pre-emptively blamed federal judges for terrorist attacks because they have ruled against him?
2. There are reports that federal officials are refusing to comply with federal court orders staying the President’s executive order on immigration and travel. Is it permissible for the President or any Executive Branch employee to refuse to comply with an order from a federal court? If not, what should the Supreme Court do if called on to decide whether the President or the Executive Branch must comply with the Court order, assuming that the Supreme Court has upheld or declined to rule on the substance of the lower court ruling? If so, what is the legal basis for allowing the President or other executive branch officer to defy the courts? Would not this place the President above the law and destroy Article III Constitutional limits on Executive power?
3. Millions of Americans exercised their First Amendment freedom of speech and assembly by participating in protests on the day after President Trump was inaugurated. Tens of thousands have protested since. Under what circumstances, if any, may the President limit the exercise of these First Amendment rights? Under what circumstances, if any, may state or local governments limit the exercise of these First Amendment rights? Do you agree that neither the President nor state or local governments may impose such restrictions on First Amendment rights that would effectively eliminate those rights or restrict them so severely as to significantly diminish the sought impact of the speech—for example, by relegating the location of permissible protests to undesirable places with low public visibility or capacity for few participants, or by restricting the time within which those rights can be exercised? Continue reading