Gorsuch Faces Telling Moment With 15-Year-Old’s Essay on Korematsu

SAN FRANCISCO (CN) – During an awards ceremony Monday at the Ninth Circuit Judicial Conference in San Francisco, new Supreme Court Justice Neil Gorsuch heard a 15-year-old student winner of a civics contest compare President Trump’s travel ban to what is widely regarded as a shameful moment in American legal history when Japanese-Americans were forced into internment camps.

The student, Olivia Tafs, traveled from Anchorage, Alaska, to receive an award as part of the four-day Ninth Circuit Judicial Conference being held in San Francisco. Olivia wrote an essay about the landmark Supreme Court Case Korematsu v. United States.

Korematsu, which was ultimately decided in favor of the United States, held that it was constitutional for the United States government to round up and imprison U.S. citizens of Japanese descent in the interest of national security during World War II.

The student’s sophisticated essay not only criticized the decision as an unfortunate example of the U.S. judicial system’s falling prey to racism, but also drew a parallel to Trump’s travel ban on individuals from six Muslim-majority countries.

Gorsuch, who will decide the constitutionality of Trump’s travel ban with his Supreme Court colleagues later this year, presented Olivia and other students with awards. He deftly avoided commenting on the substance of the essay, contenting himself with praising Olivia’s interest in the history of the judicial branch and the American government in general.

“We spend a lot of time talking about the depressing state of civics in general, but moments like this are heartening for me,” Gorsuch said during the presentation.

But Gorsuch’s position is awkward, given he was appointed by the very president whom the student decried for what she asserted was a policy with overt racial injustice.

Gorsuch was filling in for Justice Anthony Kennedy, an ardent supporter of civics education slated to speak at the event, who backed out when his wife Mary broke her hip in Salzburg, Austria.

“Kennedy wishes he could be here,” Gorsuch told the room.

During the panel discussion on civics education, where Gorsuch joined a host of other federal judges, moderator Kathleen Hall Jamieson of the University of Pennsylvania’s Annenberg School for Communication said only 26 percent of the American public can properly identify the three branches of government – legislative, executive and judicial.

Gorsuch and others said this paucity of civics knowledge should serve as a reminder that democracy depends on an informed citizenry.

“It’s a really healthy reminder that self-government is not self-sustaining or self-perpetuating, but depends on all of us playing a role to keep it,” he said.

Jamieson asked Gorsuch what aspect of the court system is poorly understood. He said the degree to which judges find consensus and agreement is vastly underplayed by the public and the media.

“Only 5 percent of all the cases filed in the federal system are appealed,” Gorsuch said. He added that though the Supreme Court has nine justices nominated by six different presidents with different worldviews, they manage to make unanimous decisions just over 40 percent of the time.

“We have an amazing rule of law I think, and it’s remarkably effective, sturdy and accepted,” Gorsuch said. “The judiciary offers resolution of social disputes in a peaceful way with the use of reason, and most of the decisions end up unanimous.”

Second Circuit Chief Circuit Judge Robert Katzmann said the idea of partisanship in the judiciary is corrosive to public faith. He blamed the media for making too much out of which judge was appointed by which president to explain legal conclusions.

“It reinforces the idea that being a judge is a partisan activity,” Katzmann said during the afternoon panel. “In most cases, differences of opinions arise between judges but to constantly reduce those differences to partisan differences cannot be and should not be.”

The admonition was ironic given Gorsuch’s nomination involved a bitterly partisan fight that came after the Republican-controlled Senate refused to consider President Barack Obama’s nomination of Merrick Garland for nearly a year – and then changed the Senate rules to approve Gorsuch’s nomination along mostly partisan lines.

While Gorsuch downplayed the media’s fixation on the 5-4 Supreme Court votes as a rarity, some of the most important decisions with widespread ramifications – including Citizens United and the Bush v. Gore decision that decided the 2000 election were decided by a deeply divided court.

The panel also featured Ninth Circuit Chief Circuit Judge Sidney Thomas; U.S. Senior District Judge and president of the Federal Judges Association Marilyn Huff; and U.S. Magistrate Judge Michael Newman, also president of the Federal Bar Association.

 

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