With President Trump nominating Judge Neil Gorsuch of the 10th Circuit U.S. Court of Appeals to the Supreme Court, nonpartisan SCOTUS watchdog Fix the Court is highlighting information that relates to the judge’s views and experiences on judicial accountability and is calling on the nominee not to demur when asked tough questions on relevant legal issues.
“President Trump said he wanted to nominate someone ‘in the mold of Scalia,’ but I’m hoping he wasn’t referring how the late justice opposed cameras in the courtroom, often spoke at partisan fundraisers, gave hints about his votes on open cases and served for a monarchic amount of time,” FTC executive director Gabe Roth said. “If Judge Gorsuch is confirmed, there’s a fighting chance that, given his age and experience, he can serve as a potent counterbalance to Chief Justice Roberts in pushing for modest pro-transparency reforms at the high court.”
When Judge Gorsuch is asked about the issues of the day – from whether President Trump’s executive order banning refugees and immigrants from certain countries is constitutional to whether an investigation should be undertaken to find out if millions of people voted illegally in November – it is Fix the Court’s belief that he should not stay silent. Rather, he should be required to explain whether such actions comport with our nation’s laws and values.
“Judge Gorsuch may want to withhold comment since these topics could theoretically reach the high court, but demurring won’t cut it,” Roth added. “The American people deserve to know where the nominee stands on these and other relevant legal issues.”
Below are hints on where he may stand on SCOTUS transparency and accountability:
Broadcast access: Judge Gorsuch’s court is the only federal appeals court that does not automatically release the audio of its hearings online. To obtain argument audio from the 10th Circuit, “attorneys or parties may […] file a proper motion after the oral argument is concluded.” The other 12 U.S. courts of appeals either currently release or are working toward releasing audio on their websites with 24 hours, and the Supreme Court currently releases argument audio at the end of the week.
Term limits: Fix the Court supports an end to life tenure at the high and calls on Judge Gorsuch to pledge to serve a fixed term if confirmed. On the topic of term limits, Gorsuch wrote an essay in 1992 defending the constitutionality of state referenda aimed at term-limiting members of Congress. At the time, 14 states had placed voter-initiated term limit measures on their November ballots, which culminated three years later in a Supreme Court decision that struck down such limitations. Neither Gorsuch’s essay nor the ballot initiatives mentioned limiting the tenure of Supreme Court justices, though it’s a fix that’s supported by the vast majority of Americans.
Stocks, recusals and disclosures: According to his most recently available financial disclosure report, Gorsuch does not own any individual company’s stock and instead invests in money market accounts, retirement funds and bonds that are much less likely to induce recusals. There do not seem to be any major recusals in his caseload, though the practice of the 10th Circuit is to not publicly disclose reasons for recusals when they occur.
Ethics: Should Gorsuch be confirmed, he will no longer be required to adhere to several rules that lower federal judges must follow, including the Code of Conduct for U.S. Judges, which describes how judges should conduct themselves in order to ward off even the appearance of impropriety, and the Judicial Conduct and Disability Act, which describes how judges may be disciplined for indiscretion deemed short of an impeachable offense. Details about privately funded seminars that federal judges periodically attend (as in, who funds them) are regularly posted online, but that’s not the case for Supreme Court justices, of course.
“It’s unfortunate that Judge Gorsuch will have more responsibility yet less accountability should he be sworn in as the ninth justice,” Roth said. “At the same time, it’s my hope that Judge Gorsuch’s time in the spotlight will demonstrate to all federal judges the benefits of greater openness within the judiciary.”
As a nonpartisan organization, Fix the Court will not take sides in the confirmation battle.