Judge Gorsuch and Executive Power

I’ll be testifying tomorrow before the Senate Judiciary Committee about Judge Gorsuch’s nomination to the Supreme Court. I intend to focus on Judge Gorsuch’s tenure at the Justice Department in 2005-2006 and, more specifically, on the role that he played in the Bush administration’s efforts to marginalize the courts and Congress in the sphere of national security.  (Jen Daskal explored these issues last week.) From my written testimony, which I submitted this morning:

I am familiar with Judge Gorsuch’s professional biography and have reviewed many of his opinions, and it is obvious that Judge Gorsuch has the professional competence to serve as an Associate Justice. Others have testified to Judge Gorsuch’s dedication, thoughtfulness, and collegiality, and I have no reason to doubt that he possesses these qualities. His service with the Bush administration’s Justice Department, however, raises important questions about his views concerning executive power and the role of the judiciary in the sphere of national security. At the time Judge Gorsuch served in the Justice Department, the Bush administration was advancing extremely broad claims of executive power in the service of unlawful policies relating to surveillance, detention, military commissions, and interrogation. Judge Gorsuch was closely involved in developing and defending these claims. I urge you not to confirm him without first carefully examining his views concerning executive power and assuring yourselves that he will forcefully defend individual rights, and the authority of Congress and the federal courts, in the context of national security.

I don’t assume that Judge Gorsuch would approach issues relating to executive power the same way as an Associate Justice as he did as a Justice Department lawyer. It’s conceivable that as an Associate Justice he’d reject some of the arguments he made when he served in the Bush administration. At the Justice Department, Judge Gorsuch was a lawyer with a client. He’s said that he regarded himself as merely a “scrivener” or a “scribe.”

Still:

It is worth noting . . . that Judge Gorsuch sought out a high-level position with the Justice Department in the fall of 2004, just seven months after The New Yorker and 60 Minutes published the Abu Ghraib photos showing prisoners being abused by American soldiers, and only five months after the Washington Post published one of the torture program’s foundational documents—a memo in which the Office of Legal Counsel wrote that interrogation methods would not contravene criminal laws relating to torture unless they inflicted the kind of pain associated with organ failure or death, that in any event the statute criminalizing torture did not apply to interrogations “undertaken pursuant to [the] Commander in Chief authority,” and that interrogators prosecuted for torturing prisoners would be able to rely on the defenses of necessity and self-defense. It is not the case, in other words, that Judge Gorsuch happened to be a government lawyer at a time when the government—his client—endorsed torture and a sweeping view of presidential power. The government endorsed those things first, very publicly, and then Judge Gorsuch chose his client.

It is also worth noting that Judge Gorsuch appears not to have registered any disagreement with any of the policies he defended—though other officials did. Nor is there evidence that he registered discomfort with any of the broad arguments that the Justice Department advanced in support of those policies—though, again, others did. The documents provided by the Justice Department to the Committee suggest that Judge Gorsuch was comfortable with the policies and with the Bush administration’s defenses of them, and, indeed, that it was challenges to the policies that troubled him. In one email, Judge Gorsuch criticized law firms that represented prisoners held at Guantánamo, wondering why “more ha[d] not been made” of the fact that the same law firms that represented Boeing and General Dynamics were (in the words of an article attached to his email) “help[ing] alleged terrorists.” As we now know, many of those “alleged terrorists” were not terrorists at all, and eventually the government freed them. It is notable that Judge Gorsuch seems not to have seen a role in the American legal system for the private attorneys who represented them pro bono.

My written testimony is here.  Elisa Massimino, Executive Director of Human Rights First, will also be testifying.  Her written testimony, which is excellent, is here.

Photo by Drew Angerer/Getty Images

 

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About the Author(s)

Jameel Jaffer

Founding Director of the Knight First Amendment Institute at Columbia University, Former Deputy Legal Director at the American Civil Liberties Union and Director of the ACLU’s Center for Democracy, Author of The Drone Memos, Follow him on Twitter (@JameelJaffer).