“My momma,” said Forrest Gump, “always said, ‘Life was like a box of chocolates. You never know what you’re gonna get.’”
Golly, that’s just the way I feel about Supreme Court nominee Judge Neil Gorsuch. He sure is an attractive, down home kind of feller, But I just don’t know whether there’s something sweet, sour, or hard as a rock hidden beneath that amiable exterior. And I don’t think it’s fair to make us find out only after he has been confirmed for a seat on the Court.
Judge Gorsuch (and to be fair, almost all modern Supreme Court nominees), steadfastly refused to answer any questions, during his confirmation hearing before the Senate Judiciary Committee that might indicate how he might rule as a judge on the nation’s highest court.
“If I indicate my agreement or disagreement with a past precedent of the United States Supreme Court,” he said, “I’m signaling to future litigants that I can’t be a fair judge.”
This position is absurd and an insult to democratic accountability. All of the sitting justices have already disclosed their ideas about the where the law is and where they think it should go by authoring or signing on to opinions that tell us what they think. Justice Kennedy, the author of the Obergefell v. Hodges case that held same-sex marriage to be a constitutional right, made it abundantly clear where he stands on same-sex marriage. Must Kennedy now recuse himself from any future case addressing the same subject?
When we ask a judge to remain impartial, what we want is a person who is willing to consider the presentations of the parties with an open mind. An impartial judge in a murder case, for example, waits until all evidence has been presented to decide whether the death in question was the result of murder or self-defense. Impartiality means that a person’s race, class, gender, religion, age or any other morally irrelevant factor plays no role whatsoever in the way a judge rules in a case.
But impartiality does not extend to matters of law. At the District Court and Circuit Court levels, it matters not one bit whether a judge agrees with the policy contained in laws adopted by Congress or precedents handed down by the Supreme Court. And it is fair game for people nominated to be District Court or Circuit Court judges to be asked about what their understanding of the law is. Their future rulings are constrained by precedent and subject to correction by higher courts.
Supreme Court nominees bear an additional burden. Contrary to the impression Judge Gorsuch gave at the hearing, Supreme Court justices are charged with doing more than simply applying federal statutory law and hewing to existing Supreme Court precedent. They do not, as Chief Justice John Roberts memorably and disingenuously said at his own confirmation hearing, simply “call balls and strikes.” Supreme Court justices are not bound by precedent, and they are often in a position to make more enduring law than any legislature can. Major Supreme Court rulings are often more disruptive of the status quo—for good and for ill—than acts of Congress. Brown v. Board of Education gave a huge push to the Civil Rights movement of the 1950s and 1960s, we’re still feeling the social and political reverberations of Roe v. Wade, and Dredd Scott v. Sanford lit the fuse that led to the Civil War.
The Justices of the Supreme Court serve for life. They cannot be removed from office. They are insulated from public pressure. They are not democratically accountable in any meaningful way. And if they make a bad call on constitutional grounds, it takes a constitutional amendment—approval by 2/3 of the House of Representatives, 2/3 of the Senate and ¾ of the states—to fix it. There are ordinarily only nine Supreme Court Justices, and so just five of them can wreak havoc with a bad opinion. All of this makes Supreme Court Justices supremely powerful and supremely dangerous.
Despite the unprecedentedly shabby treatment afforded to Judge Merrick Garland, Barack Obama’s nominee for the seat for which Judge Gorsuch is now being considered, elections have consequences, and one of the consequences of the 2016 election is that Donald Trump now has the right to nominate a replacement for the late Justice Antonin Scalia. And, ordinarily, a president’s choices are entitled to deference, particularly if the nominee is apparently competent, isn’t a scoundrel, and holds mainstream views.
Judge Gorsuch seems like a sober jurist who stands at least a country mile distant from even the faintest whiff of scandal. People familiar with his work say he’s a great writer, and the American Bar Association says that he has all of the technical skills a person needs to contribute to the Court’s work. His clerks, both liberal and conservative alike, have endorsed him. The problem is that I have no idea whether Judge Gorsuch holds mainstream views because he refused to answer the questions that would enable me to make that judgment.
And that’s why Democrats should vote against his confirmation.
The issue, for me, doesn’t boil down to the fact that Republicans stole this seat from Barack Obama. And it also doesn’t boil down to the fact that I would prefer to see somebody more in the mold of Justice Ruth Bader Ginsburg get the seat.
What matters is that Judge Gorsuch has presented himself as a sweet confection with everything that matters hidden inside. If he believes that Roe v. Wade—the case that makes abortion legal everywhere, at least during the first trimester of pregnancy--was incorrectly decided and would vote to overrule it, we have the right to know. If he believes that Citizens United v. FEC—the case that allows unions and corporations to contribute unlimited amounts of cash to our elections--was correctly decided and would vote to sustain it, we have the right to know. And, if he believes that Shelby County v. Holder—the case in which the Court substituted its own judgment on the need for the preclearance requirement of the Voting Rights Act for that of Congress and the President, was correctly decided, we have the right to know. The law doesn’t just belong to the President, the Justices on the Supreme Court or the majority party in the Senate. It belongs to all of us.
There may not be anything anyone can do to keep Judge Gorsuch, if he is on the wrong side of these or any other issue from taking Merrick Garland’s seat on the Court. But that’s not the point. A solid democracy requires an informed citizenry. The people have the right to know what their leaders are about to do to them, if for no other reason than to be smarter in choosing their leaders the next time around.
American citizens shouldn’t be forced to accept pot luck when it comes to Supreme Court appointees. As a matter of principle, Democrats need to push back against the strategy of evasion Judge Gorsuch used at his hearing. Democrats should not cast their votes against Judge Gorsuch out of a sense of partisan grievance. They should vote no in because American democracy is not a box of chocolates.
