Soon after his nomination to the U.S. Supreme Court, Judge Neil Gorsuch confided to a number of senators that President Trump’s attacks on federal judges are “disheartening and demoralizing.”
Is there a better description of the Gorsuch nomination itself, and the fundamentally dishonest process by which it is slouching toward confirmation?
Last week’s hearings, featuring two days of testimony by the nominee, seemed by design to shed little light on Gorsuch’s philosophy or on what kind of justice he will be. But in their determined reticence, they were not a happy portent. Indeed, for me at least, the nominee’s performance left me feeling worse about him than I previously had.
Both publicly and privately, people I admire and respect have assured me that Gorsuch is a fine human being and a conscientious judge. The most public example of this was the appearance by former acting solicitor general Neal Katyal, a former Obama official now leading the fight against the Trump travel ban, to assure the committee that he is “a first-rate intellect and a fair and decent man.” Also in evidence was a phalanx of former clerks willing to tell anyone who would listen of their judge’s wisdom and kindness. I stipulate—as I did from the outset—that Gorsuch is just a terrific guy.
The Neil Gorsuch on display in front of the committee, however, was not as appealing as the picture painted of him by his friends. In his answers to senators, Gorsuch seemed like a man whom one would dread sitting next to on a long airplane trip. The charm he displayed was oddly repellent; his vaunted humility was relentlessly overbearing; and his open-mindedness was rigidly dogmatic. He seemed to have trouble concealing contempt for the process, his questioners, and the public itself.
Gorsuch was by turns condescending, evasive, and even dishonest. In fact, it’s not too much to say that he, in his aw-shucks gentlemanly way, gaslighted the committee in a genteel but nonetheless Trumpian style.
In effect, Gorsuch said over and over, there is no elephant in the room.
That elephant, of course, is lawless politics of the rawest kind. The naked partisanship that kept a seat on the court open for a year in hopes that a Republican president could fill it; the overt contempt for law shown by Trump in stumping the country, showing a list with Neil Gorsuch’s name on it to guarantee a reversal of pro-choice legal precedent; the ideological aggressiveness that led a mysterious “dark money” group to pony up a staggering $10 million for TV ads touting Gorsuch for the seat denied to Merrick Garland; the authoritarian cynicism of an executive branch recklessly seeking to intimidate and neuter the Article III courts.
It’s fair to say that no Supreme Court seat since Franklin Roosevelt’s nomination of Hugo Black has arrived smelling so strongly of party politics as has Gorsuch’s. And that nomination was born of the judiciary’s last near-death experience.
But Gorsuch insisted there was nothing to see in any of this. “I can’t get involved in politics,” he said indignantly. Gorsuch had, apparently, been delivered to the Senate committee room by the stork.
For me, the most annoying moment came when Sen. Al Franken (D-MN) attempted to engage him on a serious doctrinal area—the willingness of conservative judges to uphold mandatory arbitration clauses in situations where their operation offers a one-sided advantage to business interests who force them on employees and consumers. Arbitration clauses force those employees and consumers to cede their right to a jury trial in favor of a proceeding in front of a private arbiter who typically favors the firm that wrote the clause. As Franken pointed out, decisions like DirectTV, Inc. v. Imburgia and American Express v. Italian Colors Restaurant have shown a partiality for arbitration—usually at the expense of the rights of consumers, employees, and small business—well in excess of anything that previous courts had been willing to enforce.
Gorsuch’s reply was smug: Jury trial was formerly available in most claims, he said. “And then in about—I think in 1925, Congress passed the law called the Federal Arbitration Act.” This was not only condescending—of course Franken knew about the “the law called the Federal Arbitration Act,” that was why he was asking the question—it was, as any lawyer will admit, intellectually dishonest. Franken was not asking about the Act, but about recent Supreme Court decisions interpreting the act—and a statutory interpretation is quite a different animal from the statute itself, especially since these interpretations were decided three-quarters of a century after the Act was passed, and generated spirited dissents. Gorsuch showed no willingness to admit that judicial interpretation of statutes—which is, after all, the central business of the Court—even existed.
Gorsuch tried manfully to be everybody’s folksy if not very communicative friend; the attempt was a bit grating. When Sen. Sheldon Whitehouse (D-RI) asked him to discuss the 5-4 decisions that have empowered wealth to dominate political discourse, Gorsuch dismissed him airily: “I would like to cheer you up about the judicial process,” he said, pointing out the irrelevant fact that many decisions are unanimous.
“If you ever go to Philadelphia,” he explained to Sen. Ben Sasse (R-NE), “you’ve got to go to Independence Hall and the Constitution Center and see how it all happened.” (This avuncular advice, well suited to a delegation of sixth-graders, was gapingly fatuous when offered to a prize-winning American historian, Yale Ph.D., and former university president who is also a sitting senator.)
I fear that Gorsuch’s opaque manner actually does not hide, but rather displays, his jurisprudential philosophy. There is a strain of conservative legal philosophy (by no means the only one, but a powerful one) that regards the role of courts as blocking the naïve progressive impulses of the people—poor fools, using individual mandates and Medicaid expansions to construct a modern health care system! Thinking that labor unions contribute to prosperity! Falling for politically correct gabble about feminism and homophobia or whatever the latest fad may be!—and substituting the mature judgment of the high court. Some thinkers on the right now insist that a judge’s duty is to decide whether economic and social regulation is wise, and strike it down if, in the judge’s opinion, it is not. Faced with demographic and political irrelevance, a strain of right-wing thought sees the courts as the final firewall of a laissez-faire economic order.
Of course, the decisions gutting progressive measures are to be couched in soothing neutral language of law—nothing to see here, I just call balls and strikes.
I caught a whiff of that philosophy when Gorsuch insisted, over and over, he was an entirely non-political being who had sprung immaculate from the brow of Lady Liberty. He is simply a judge, he said over and over—a job which calls, apparently, for neither values nor any firm connection to human life as it is lived. Judges just, well, you know, Senator, judge; they channel the brooding omnipresence of reason and then reach results without a thought for the so-called real world the rest of us must live in.
In fact, the job of a real judge is not to sniff daisies and contemplate Coke-on-Littleton, but to apply legal norms—the Constitution, treaties, statutes, and precedent—to facts. If, before getting the job, a judge is willing to pretend that facts don’t exist—What Merrick Garland nomination? What dark money? What Senate blockade? What campaign rhetoric?—the prospects for his long tenure on the high bench really are disheartening and demoralizing.