Every judicial nominee is free (to state his or her opinion)

As you listen to the Senate Judiciary Committee hearings on the nomination of Judge Neil Gorsuch to be an associate justice of the U.S. Supreme Court, pay close attention to the holding in the majority opinion in the Supreme Court's 2002 decision in Republican Party of Minnesota v. White, 536 U.S. 765. The case struck down Minnesota's so-called "announce clause," which prohibited judicial candidates from announcing their positions on certain issues. The majority opinion in White was written by one of Gorsuch's judicial heroes, none other than the late Antonin Scalia. In fact, if confirmed, Gorsuch will take Scalia's seat on the court.

Justice Anthony Kennedy, who Gorsuch clerked for before being appointed to the 10th U.S. Circuit Court of Appeals, wrote a concurring opinion in White. If confirmed, Gorsuch will be the first former Supreme Court clerk to sit on the court with a justice that he formerly clerked for.

Judicial candidates frequently ignore the White decision, claiming they are precluded from offering their opinions on the hot button political, social and legal issues of the day. Any nominee or candidate for judicial office who asserts such a position is either badly informed on the law or intentionally evading the truth to avoid answering the proposed questions on their merits.

In White, the court held, that judicial candidates have the same First Amendment right to give their opinions as any other candidate running for office. Scalia wrote: "The Minnesota Supreme Court's canon prohibiting candidates for judicial election from announcing their views on disputed legal and political issues violates the First Amendment." In an equally clear statement, Kennedy said: "The political speech of candidates is at the heart of the First Amendment, and direct restrictions on content of candidates speech are simply beyond the power of government to impose."

In White, the court made it clear that judicial candidates are free to "announce" their views on controversial issues like, for example, the death penalty, gay rights, executive privilege, reparations for African-Americans, jury nullification, the appropriateness of building a wall between the U.S. and Mexico, to prevent passage by citizens of Mexico, or other countries, into the United States.

The only prohibition on a judicial candidate's or nominee's free speech is a statement by the nominee "committing' to rule on a specific case in a particular manner. A nominee is absolutely free to "announce" his views for or against the death penalty, for or against LGBTQ rights. But he is at risk of recusal or disqualification from hearing a specific cases if he commits to how he would rule on a particular death penalty case, or a specific LGBTQ case, that might come before the court in the future.

The bottom line: If you hear nominee Gorsuch respond to a member of the judiciary committee to the effect that he can't give his personal views on the hot button political, social or legal issues of the day, know he is misstating the truth, or telling an outright lie. Not only does Gorsuch know better, but so do his mentors who penned opinions in the very case (White) that guarantees his right to speak his mind.

We must demand that members of the judiciary committee waive the White decision in Gorsuch's face every time he attempts to avoid the senate committee's direct questions. We cannot allow political and partisan handlers to coach Gorsuch into making a mockery of our democracy.

Without a doubt, Gorsuch, who fashions himself a Frist Amendment champion in his jurisprudence, is intimately familiar with, and understands the nuance of the ruling in White. If any judicial nominee in history should be held to the transparency standard demanded by White, it is Gorsuch.

Not only does Gorsuch have a First Amendment right to answer the questions put to him by the committee, but also the people of this country have a right to be fully informed on his views, before he is confirmed for a lifetime appointment to the highest court in our land.

We the people should use all of the social media tools at our command to draw the Senate Committee's attention to the ruling in the White case. We should use these tools, like Twitter, to tweet the questions we want answered by the nominee. If the Judiciary Committee is too squeamish to do their job, or is hamstrung by partisan procedural rules, or other obstacles, we must do their job for them.