Neil Gorsuch Must Answer the Questions Merrick Garland Was Denied

AP Photo/Andrew Harnik

Supreme Court Justice nominee Neil Gorsuch meets with Senator Chris Coons on Capitol Hill. 

This is what the GOP push to confirm Neil Gorsuch, Donald Trump’s far-right nominee for the Supreme Court, has come to: An Instagram video posted by the Senate Republican Conference shows the 49-year-old federal Circuit Court of Appeals judge stopping to pet an adorable Shih Tzu while on his Capitol Hill rounds. The caption: “One more reason you’ll love Judge Gorsuch. He loves dogs.”

Funny, perhaps, and cuddly—but also emblematic of Republicans’ artful but misleading push to “normalize” Trump’s very right-wing choice in advance of his Senate confirmation hearings, which begin on March 20. It’s all part of a full court press to install Gorsuch in the Supreme Court seat that Republicans effectively stole from Barack Obama with their unprecedented refusal to even consider his nominee, Merrick Garland, another widely respected—and far more moderate—federal judge. Obama had tapped Garland to fill the vacancy created by Antonin Scalia’s death a little more than a year ago.

The operative Republican strategy to date has been to focus attention on Gorsuch’s indisputable smarts, professional competence, impeccable academic credentials, and personal likeability—shifting attention from the less appealing qualities that won the favor of Trump and his Federalist Society vetters—namely, Gorsuch’s extremely conservative judicial record and philosophy. The idea is to portray Gorsuch, an originalist like Scalia, as an unthreatening “mainstream” choice.

“I don’t think folks on the left should be concerned about Judge Gorsuch becoming a Supreme Court justice,” a former Gorsuch clerk and employee of the Obama Justice Department assures viewers in one of the television ads Republican groups are running to move public opinion and squeeze pro-Gorsuch votes out of Democratic senators seeking re-election in 2018 in states Trump carried last year. No hint in those commercials that, if elevated, Gorsuch would fall to the right of all current justices except Clarence Thomas, according to educated assessments—bad news for women defending abortion and contraception access, public-sector unions, voting rights advocates, environmentalists, opponents of Citizens United and secret big money, and for those combatting anti-LGBTQ discrimination.

The nominee himself appears to have talked more about fishing and rafting on his courtesy rounds of Senate offices than about his judicial record and views on the Supreme Court’s constitutional role in checking White House abuses of power—a topic with elevated relevance given Trump’s disastrous first weeks and the not unimaginable possibility that he would defy court orders or unconstitutionally exact retribution against protestors, immigrants or the press down the road.

Gorsuch did tell at least one senator behind closed doors that Trump’s disparagement of “the so-called judge” who issued a nationwide injunction against his unconstitutional immigration executive order, as well as other judges, was “disheartening” and “demoralizing.” That’s a positive sign, but Gorsuch has declined to go public with his concerns, at least so far.

Gorsuch “avoided questions like the plague,” Senate Minority Leader Chuck Schumer complained after a private meeting with the nominee. “The judge was clearly very smart, articulate and polite with superb judicial demeanor,” Schumer elaborated in a subsequent op-ed piece, but “over the course of an hour, he refused to answer even the most rudimentary questions,” saying to do so “might bias him.”

Judge Gorsuch can be expected to take the same tight-lipped approach at his confirmation hearings, following in the footsteps of many prior Democratic and Republican nominees. Yes, senators on both sides of the aisle agree on the need to protect the Supreme Court’s independence and to avoid asking a potential justice to prejudge a specific case that might come before the court. But that does not mean Judge Gorsuch should be spared questions about his originalist philosophy, which resembles Scalia’s, or how he would have voted in cases previously decided by the powerful court he would join.

Schumer, for one, is sensibly advocating to allow consideration of Gorsuch’s constitutional vision before senators cast their votes. The point isn’t that this would serve Democrats’ current political interests, though it might. The point is that greater transparency and responsible exploration of the direction that potential nominees such as Gorsuch would take on the Court is in the public interest. It is also faithful to the Constitution’s design, which anticipates a meaningful advise and consent process. The preservation of Americans’ rights and basic constitutional values rests heavily with the men and women confirmed to be Supreme Court justices. Senators of both parties owe a duty to carefully scrutinize nominees with that in mind.

Asking Supreme Court nominees about past rulings doesn’t undermine the impartiality of the judiciary, explain Yale Law School Professors Robert Post and Reva Siegel in a persuasive 2006 article that is getting a fresh look. The reason is simple: The voting record and legal thinking of sitting justices in prior cases is no secret, and no one sees the fact that those views are known as denying litigants impartiality when the next iteration of the same issue rolls around. A justice who answers substantive questions about an earlier case before being confirmed is in no different position from a current justice whose prior record is already known.

Note, too, that recent nominees’ objections to disclosing their views about important principles and past cases has been selective. Nearly all have embraced the Supreme Court’s landmark 1954 desegregation decision, Brown v. Board of Education, for example, while refusing to substantially answer questions about old abortion cases, including the 1973 Roe v. Wade ruling establishing the constitutional protection of abortion access, which was re-affirmed just last June. It’s an unsupportable dichotomy, especially for a nominee who presumably passed several declared Trump litmus tests, mostly prominently support for eliminating Roe and the fundamental right it upheld.

To gauge Judge Gorsuch’s strength and willingness to stand up against serious abuses of White House power, including by the erratic president who appointed him—a vital matter—Linda Greenhouse, the estimable Supreme Court  commentator, suggests that Gorsuch be asked how he would have ruled in Boumediene v. Bush, the 5-4 2008 decision that vindicated the rule of law by finding that war detainees held at Guantanamo have a constitutional right to challenge their detentions in federal court.  Gorsuch should be willing to respond, and to answer questions about other well-chosen prior cases, too.  There is a difference between the kind of dodging that is truly necessary to protect judicial independence and integrity, and reflexive stonewalling.

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