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The American public deserves to know much more about where Neil Gorsuch, Trump's nominee for the US Supreme Court, stands on a number of key issues. (Photo: @POTUS/Video)
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The American public deserves to know much more about where Neil Gorsuch, Trump's nominee for the US Supreme Court, stands on a number of key issues. (Photo: @POTUS/Video)
Over two weeks ago, Senator Dianne Feinstein, the Ranking Member of the Senate Judiciary Committee, sent Judge Gorsuch a letter asking about his role in 10 high-profile cases that were litigated by the Civil Division at the Department of Justice while Gorsuch was the Principal Deputy to the Associate Attorney General. These include cases involving warrantless wiretapping, detainee treatment, and broad assertions of executive authority in national security matters. The answer to these questions - regardless of one's ultimate views on Judge Gorsuch - should be made publicly available.
Specifically, the letter asks for pertinent information about Gorsuch's role in reviewing and editing briefs, developing case strategy, and general involvement in litigation decisions in seven key national security cases (as well as three others that deal with abortion, same-sex marriage, and Chevron deference) that were litigated during Judge Gorsuch's time as principal deputy. All involved broad claims of executive power. Gorsuch has already acknowledged spending a "substantial amount of time reviewing and editing trial and appellate court legal briefs and developing case strategy," while working in the Associate's office. More details are needed, particularly given the extremely expansive view of executive power taken in the briefs filed by the Department during the time period when Gorsuch had such a powerful role in overseeing the Civil Division.
The specific cases Senator Feinstein asked about cover the following:
Of course, as Judge Gorsuch will likely point out, all of these cases were litigated with an eye to defending his client: the United States government. And it would of course be unfair to assume that positions taken on behalf of a client are necessarily the same positions that Judge Gorsuch would take as an independent arbiter on the nation's highest court. But at the same time, it is fair to probe the issue - to figure out what positions he took as Principal Deputy, to seek to understand how much he pushed for and supported such broad assertions of executive authority (many of which were ultimately rejected by the judicial branch), and to assess whether these views reflect his current thinking on these critically important issues now.
This is particularly true these days, in light of a President who claims total, unreviewable discretion of his immigration policy, demonstrates a willingness to assert national security justifications without pointing to any credible evidence in support, and has shown extreme contempt for anyone who disagrees with him -- including judges, the media, and his own intelligence community. Given the current political climate, understanding Judge Gorsuch's views on executive authority is of critical importance.
The record indicates that he was in all likelihood deeply involved in some of these key cases when he was in a leadership role in the Department of Justice between 2005-2006. If so, the American public deserves to know this. In several of the cases, the briefing reached beyond what was required to make the government's case, bootstrapping into the government's statutory arguments broad claims about executive power. In the Hamdan briefing, for example, the Department argued that "Congress's multiple authorizations of the President's use of military commissions in the ongoing conflict with al Qaeda obviate the need to consider the President's inherent authority to act in the absence of such authorization." But then it went on to address the President's inherent authority nonetheless, articulating the view that the President "undoubtedly" possessed this authority. To what extent did Judge Gorsuch push and support these additional arguments? And what are his views now?
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Over two weeks ago, Senator Dianne Feinstein, the Ranking Member of the Senate Judiciary Committee, sent Judge Gorsuch a letter asking about his role in 10 high-profile cases that were litigated by the Civil Division at the Department of Justice while Gorsuch was the Principal Deputy to the Associate Attorney General. These include cases involving warrantless wiretapping, detainee treatment, and broad assertions of executive authority in national security matters. The answer to these questions - regardless of one's ultimate views on Judge Gorsuch - should be made publicly available.
Specifically, the letter asks for pertinent information about Gorsuch's role in reviewing and editing briefs, developing case strategy, and general involvement in litigation decisions in seven key national security cases (as well as three others that deal with abortion, same-sex marriage, and Chevron deference) that were litigated during Judge Gorsuch's time as principal deputy. All involved broad claims of executive power. Gorsuch has already acknowledged spending a "substantial amount of time reviewing and editing trial and appellate court legal briefs and developing case strategy," while working in the Associate's office. More details are needed, particularly given the extremely expansive view of executive power taken in the briefs filed by the Department during the time period when Gorsuch had such a powerful role in overseeing the Civil Division.
The specific cases Senator Feinstein asked about cover the following:
Of course, as Judge Gorsuch will likely point out, all of these cases were litigated with an eye to defending his client: the United States government. And it would of course be unfair to assume that positions taken on behalf of a client are necessarily the same positions that Judge Gorsuch would take as an independent arbiter on the nation's highest court. But at the same time, it is fair to probe the issue - to figure out what positions he took as Principal Deputy, to seek to understand how much he pushed for and supported such broad assertions of executive authority (many of which were ultimately rejected by the judicial branch), and to assess whether these views reflect his current thinking on these critically important issues now.
This is particularly true these days, in light of a President who claims total, unreviewable discretion of his immigration policy, demonstrates a willingness to assert national security justifications without pointing to any credible evidence in support, and has shown extreme contempt for anyone who disagrees with him -- including judges, the media, and his own intelligence community. Given the current political climate, understanding Judge Gorsuch's views on executive authority is of critical importance.
The record indicates that he was in all likelihood deeply involved in some of these key cases when he was in a leadership role in the Department of Justice between 2005-2006. If so, the American public deserves to know this. In several of the cases, the briefing reached beyond what was required to make the government's case, bootstrapping into the government's statutory arguments broad claims about executive power. In the Hamdan briefing, for example, the Department argued that "Congress's multiple authorizations of the President's use of military commissions in the ongoing conflict with al Qaeda obviate the need to consider the President's inherent authority to act in the absence of such authorization." But then it went on to address the President's inherent authority nonetheless, articulating the view that the President "undoubtedly" possessed this authority. To what extent did Judge Gorsuch push and support these additional arguments? And what are his views now?
Over two weeks ago, Senator Dianne Feinstein, the Ranking Member of the Senate Judiciary Committee, sent Judge Gorsuch a letter asking about his role in 10 high-profile cases that were litigated by the Civil Division at the Department of Justice while Gorsuch was the Principal Deputy to the Associate Attorney General. These include cases involving warrantless wiretapping, detainee treatment, and broad assertions of executive authority in national security matters. The answer to these questions - regardless of one's ultimate views on Judge Gorsuch - should be made publicly available.
Specifically, the letter asks for pertinent information about Gorsuch's role in reviewing and editing briefs, developing case strategy, and general involvement in litigation decisions in seven key national security cases (as well as three others that deal with abortion, same-sex marriage, and Chevron deference) that were litigated during Judge Gorsuch's time as principal deputy. All involved broad claims of executive power. Gorsuch has already acknowledged spending a "substantial amount of time reviewing and editing trial and appellate court legal briefs and developing case strategy," while working in the Associate's office. More details are needed, particularly given the extremely expansive view of executive power taken in the briefs filed by the Department during the time period when Gorsuch had such a powerful role in overseeing the Civil Division.
The specific cases Senator Feinstein asked about cover the following:
Of course, as Judge Gorsuch will likely point out, all of these cases were litigated with an eye to defending his client: the United States government. And it would of course be unfair to assume that positions taken on behalf of a client are necessarily the same positions that Judge Gorsuch would take as an independent arbiter on the nation's highest court. But at the same time, it is fair to probe the issue - to figure out what positions he took as Principal Deputy, to seek to understand how much he pushed for and supported such broad assertions of executive authority (many of which were ultimately rejected by the judicial branch), and to assess whether these views reflect his current thinking on these critically important issues now.
This is particularly true these days, in light of a President who claims total, unreviewable discretion of his immigration policy, demonstrates a willingness to assert national security justifications without pointing to any credible evidence in support, and has shown extreme contempt for anyone who disagrees with him -- including judges, the media, and his own intelligence community. Given the current political climate, understanding Judge Gorsuch's views on executive authority is of critical importance.
The record indicates that he was in all likelihood deeply involved in some of these key cases when he was in a leadership role in the Department of Justice between 2005-2006. If so, the American public deserves to know this. In several of the cases, the briefing reached beyond what was required to make the government's case, bootstrapping into the government's statutory arguments broad claims about executive power. In the Hamdan briefing, for example, the Department argued that "Congress's multiple authorizations of the President's use of military commissions in the ongoing conflict with al Qaeda obviate the need to consider the President's inherent authority to act in the absence of such authorization." But then it went on to address the President's inherent authority nonetheless, articulating the view that the President "undoubtedly" possessed this authority. To what extent did Judge Gorsuch push and support these additional arguments? And what are his views now?