Cross-posted from Fortune.
During Judge Gorsuch’s nomination hearing this week, senators pressed him on his views on issues relevant to President Trump’s ban on travel from six Muslim countries, which has thus far been blocked by courts. Gorsuch rightly declined to say what he thought about the pending litigation, which seems destined to come before the Supreme Court. When questioned on principles that might be relevant to the case, he replied in ways that seem facially reassuring, but avoided giving anything away – although his record as a Bush administration lawyer rings plenty of alarm bells.
Senator Patrick Leahy attempted to get at the nominee’s thoughts about the First Amendment’s religion clauses, which both forbid the government from preferring one faith over another and guarantee the right to freely practice one’s faith. Asked whether the First Amendment allowed a “religious litmus test,” Gorsuch replied that the issue was “currently being litigated” – obviously referring to the travel ban cases. An explicit religious litmus test would undoubtedly be unconstitutional and Gorsuch should have had no qualms about saying so. The issue being litigated is whether the travel ban is a religious test disguised as a national security measure. He was similarly cautious when asked whether the president could ban all Jews, simply referencing the constitutional guarantees of religious freedom and equal protection. Senator Leahy was able to get Gorsuch to concede that a religious test to serve in the military would be against the law, but not much more.
“No man is above the law,” Gorsuch declared in response to Senator Leahy’s query about whether the president’s national security determinations can be reviewed by the Supreme Court. Pressed on his willingness to stand up to Trump, Gorsuch explained that the hallmark of the rule of law was whether “the government can lose in its own court.”
Read the full article at Fortune.