Supreme Court nominee Neil Gorsuch was tapped by President Trump to fill the seat left vacant by Antonin Scalia’s death over a year ago. President Obama nominated Merrick Garland to replace Scalia nearly a year ago, but Republicans refused even to hold hearings, fearing that Garland would tip the ideological balance of the court to the left. Now Senate Minority Leader Chuck Schumer is calling on Democratic lawmakers to refuse to vote on Gorsuch’s confirmation while the Trump administration is under FBI investigation. For more, we speak with Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, and with Elliot Mincberg, former chief counsel for oversight and investigations of the House Judiciary Committee.
AMY GOODMAN: Well, on Tuesday, Senate Minority Leader Chuck Schumer called on the Senate to delay a vote on Gorsuch for as long as the FBI is investigating the Trump campaign.
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SEN. CHUCK SCHUMER: You can bet, if the shoe were on the other foot and a Democratic president was under investigation by the FBI, the Republicans would be howling at the moon about filling a Supreme Court seat in such circumstances. After all, they stopped a president who wasn’t under investigation from filling a seat with nearly a year left in his presidency. It is unseemly to be moving forward so fast on confirming a Supreme Court justice with a lifetime appointment, while this big gray, gray cloud of an FBI investigation hangs over the presidency.
AMY GOODMAN: Elliot Mincberg, what about this, to delay this whole thing while there’s an FBI investigation?
ELLIOT MINCBERG: I think Senator Schumer has a very good point. The rush that Republicans are pushing to get Gorsuch on the Supreme Court — they want to get him on by early April, which would be almost record time — is quite unseemly under these circumstances. And Senator Schumer has an excellent point, that we need to take our time and be careful, not only to be sure we’ve thoroughly explored Judge Gorsuch’s record, but also because of these other concerns.
To add to one small point that was just made by Kristen, in that same 2005 article, Judge Gorsuch specifically singled out for criticism liberals, as he put it, who were trying to produce equal marriage rights through litigation. And that, of course, is exactly what happened. And that very negative attitude by him towards that and other issues is extremely disturbing. And, frankly, two days of questioning is less than the number that, for example, Judge Bork got, who was questioned for several additional days. Why is there a need to do this so quickly, particularly with this cloud that unfortunately hangs over this presidency?
AMY GOODMAN: And can you very quickly address Gorsuch backing the state of Utah in its decision to defund Planned Parenthood last year? Planned Parenthood very much in the crosshairs, if this vote takes place tomorrow around the healthcare act.
ELLIOT MINCBERG: I’m sorry, I missed part of your question.
AMY GOODMAN: If you could talk about Gorsuch backing the state of Utah in its decision to defund Planned Parenthood last year?
ELLIOT MINCBERG: Absolutely. And we learned a very important thing about that yesterday. In the Planned Parenthood case, the judges of the — three judges on the court issued a preliminary injunction against the governor, who had cut off funding for Planned Parenthood of Utah, which doesn’t itself do abortions. The judges found that he had done this as retaliation because of their promotion of abortion rights. He claimed it was because he was upset about what turned out to be the false videos of other Planned Parenthood affiliates dealing with sale of fetal tissue.
Well, Judge Gorsuch, we learned yesterday, wasn’t satisfied with that result. He wasn’t on that panel. Even though the parties didn’t want to take the case any further, he insisted on polling all the judges on the circuit to try to get that case reheard. And he argued in his dissent from the denial of rehearing, because most judges thought there was no good reason to rehear it, that we needed to give deference to the governor of Utah, out of comity to his views about why he was doing it — exactly the same argument the Trump administration is making right today on trying to uphold its immigration ban: Listen to our order that claims we’re doing it for security, not our previous statements that said we were doing it because we’re anti-Muslim, which, as several courts have found, violates the Constitution. That kind of deference to a high executive official is exactly what Judge Gorsuch has shown, as Kristen points out, even with respect to police officers. And we cannot afford that lack of independence, particularly under President Trump.
AMY GOODMAN: Finally, Kristen Clarke, you’re going to be testifying tomorrow. What are your thoughts on what the — Senator Schumer said about this vote should be put off while Trump and the Trump campaign are under investigation by the FBI, and considering what happened to Merrick Garland?
KRISTEN CLARKE: So, you know, the hearing is happening inside the four walls of that Senate room, but the reality is everything that’s happening in the outside world. And, you know, there have been people who have talked about the experience of Judge Merrick Garland and the political obstruction that prevented his nomination from being heard. There are looming questions about Russia’s influence on the November election. And there are also deep concerns about the uptick in hate crimes that we’re seeing, the rise in xenophobia. All of this looms over this incredibly important nomination and, I think, makes clear that the stakes are high.
The American public deserves a justice on that Supreme Court who will be fair and impartial and truly committed to the principle of equal justice under law, and who will bring some sensitivity to the reality of ongoing discrimination and problems that truly threaten our democracy. We are on the verge of a constitutional crisis. And a justice on the court who will bring order and resolve the great controversies that come before the court in the years ahead is critical. It’s my hope that the Senate continues to take the task of scouring Judge Gorsuch’s record very, very carefully. The stakes could not be higher.
AMY GOODMAN: There are some who say that the senators, the Democratic senators, should simply walk out and not participate in this. What are your thoughts on that?
KRISTEN CLARKE: Well, you know, I represent a nonpartisan civil rights organization, and so the political actions that elected officials might take are not something that I can comment on. But what I do agree is that the president, President Obama last year, carried out his constitutional job of putting forth a nominee who didn’t get a hearing and a vote. And in some respects, it’s hard to ignore the fact that we shouldn’t be in this position today. We should have a nine-member Supreme Court that was able to carry out its work properly over the past year. And so, that is something that’s looming. Nonetheless, here we are. Judge Gorsuch’s nomination is what’s on the table. And it is my hope that today, tomorrow and in the days ahead we look very carefully to figure out whether Judge Gorsuch is the proper person to fill that vacant seat on the court.
AMY GOODMAN: Kristen Clarke, I want to thank you for being with us, Lawyers’ Committee for Civil Rights Under Law, and Elliot Mincberg, People for the American Way.
When we come back, two men, a lawyer and a former police chief, are stopped at the airport, detained and questioned. Why? Stay with us.