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.