by John Greenya
IN AN ARTICLE HEADED “Neil Gorsuch’s conservatism is different from Antonin Scalia’s,” The Economist magazine, in its March 23, 2017, issue, referred to what it termed “his affinity for a family of legal theories . . . most interesting or most worrisome”:
Though Mr. Trump promotes his nominee as drawn from the mould [sic] of Antonin Scalia . . . he represents a stark departure from a central feature of Mr. Scalia’s jurisprudence. Mr. Scalia saw the constitution as a “practical and pragmatic” charter of government that neither requires nor permits “philosophising.” In a right-to-die case in 1990, he quipped that the nine justices were no better suited to make fine distinctions on the morality of life support than “nine people picked at random from the Kansas City telephone directory.” By contrast, Mr. Gorsuch seems more ready to let his philosophical judgments out [, tapping] into a tradition that reaches back to Thomas Aquinas and Aristotle . . . . Judicial adventures in metaphysics were anathema to the man who spent three decades in the seat to which Mr. Gorsuch aspires . . . . Scalia would be ill at ease with Mr. Gorsuch’s natural-law jurisprudence as well, even if its implications more closely match his conservative views.
The New York Times said Gorsuch was “an Echo of Scalia in Philosophy and Style,” but the Associated Press’s Nancy Benac wrote, in The Boston Globe:
Somewhere between the Republican caricature of the next justice of the Supreme Court as a folksy family guy and the Democrats’ demonization of him as a cold-hearted automaton, stands Neil Gorsuch. Largely unknown six months ago, Gorsuch has seen his life story, personality and professional career explored in excruciating detail since he was nominated by President Trump 10 weeks ago.
The portrait that emerges is more nuanced than the extremes drawn by his supporters and critics. Gorsuch is widely regarded as a warm and collegial family man, boss and jurist, loyal to his employees, and kind to those of differing viewpoints. He also has been shown to be a judge who takes such a “rigidly neutral” approach to the law that it can lead to dispassionate rulings with sometimes brutal results.
THUS IT APPEARS THAT while Justice Neil Gorsuch has great admiration for, shares some of the same judicial attitudes of, and also writes in a sprightly fashion similar to that of Antonin Scalia, the two are sufficiently different that it would be wrong to say, or even to suggest, that the former is a clone of the latter.
Just as Justice Thomas has proven to be his own (very conservative) man—and not, as it was predicted at the time of his confirmation, a paler, less focused version of Scalia, so, too, will Neil Gorsuch, the judge who speaks for himself, prove to be his own, distinctive man.
Veteran National Public Radio legal correspondent Nina Totenberg wrote on July 1, 2017, the day after Neil Gorsuch’s first Supreme Court opinions were handed down:
It is unusual to see a new justice’s ideological footprints so clearly in his first year or two on the high court. Indeed, most new justices, including those with long careers on the lower courts, are somewhat hesitant at first. They understand that the Supreme Court’s word is the final word, and that looking at issues from this new perspective is somewhat different from the perspective of a lower court judge, whose job is to carry out the mandates of a higher court.
But Justice Gorsuch seems both sure-footed and sure of himself and his views. Though he was confirmed in time to hear only the final two weeks of the term’s oral arguments, his votes and opinions in those cases—and others that the court has disposed of since he was sworn in—paint a vivid picture of a justice on the far right of the current Supreme Court bench. Indeed, he voted 100 percent of the time with the court’s most conservative member, Clarence Thomas, according to SCOTUSblog.
If Thomas is Gorsuch’s new best friend, in terms of votes, his second-best friend statistically is Justice Samuel Alito, with whom he voted next most often.
Were he somehow still here, Antonin Scalia would undoubtedly be pleased.
Chapter Ten
* * *
THE CONFIRMATION HEARINGS
In the days and weeks leading up to March 20, 2017, politicians, pundits, and the people voiced their opinions of both the nominee and the process. On Thursday, February 2, two days after Trump nominated Gorsuch, the Washington Post stated, in its lead editorial:
President Trump’s nomination of Judge Neil Gorsuch for the Supreme Court elicited an immediate, furious, and depressingly predictable reaction. Senate Minority Leader Charles E. Schumer (D-NY) called him an ideologue in a tweet sent a mere half hour after Mr. Trump made his announcement, and liberal senators such as Sherrod Brown (D-Ohio) and Elizabeth Warren (D-Mass) announced they would oppose the nomination not long after that. Conservative activist groups, meanwhile, vowed to go on an election-year-style campaign to advance Mr. Gorsuch’s nomination. The politicization of the judiciary, in other words, continues apace.
Three of the four columns on that same day’s op-ed page dealt with the Gorsuch nomination. On February 1, George F. Will took issue with a statement by Justice Scalia that there is no philosophizing in the Constitution, and expressed the hope that because he has a doctorate in philosophy and jurisprudence from Oxford, where he studied with John Finnis (who wrote Natural Law and Natural Rights), Gorsuch “will effect a philosophic correction.” And, in a column headed “It’s Time to make Republicans pay for their supreme hypocrisy,” the liberal E. J. Dionne, Jr., opined that “We are in for a festival of GOP hypocrisy in the debate over [the Gorsuch nomination].” And, finally, in a side-by-side column, Republican senator Mitch McConnell, the architect of the Garland blockade, gave voice to that hypocrisy, stating that Scalia’s seat on the highest court “does not belong to one president or one political party. It belongs to the American people.”
On the same day Trump picked Gorsuch, the New York Times, as expected, editorialized against the nomination: “In normal times, Judge Gorsuch—a widely respected and, at 49, relatively young judge with a reliably conservative voting record—would be an obvious choice for a Republican president. These are not normal times.”
On the day after Gorsuch was nominated, Alex Swoyer of the Washington Times, a conservative voice, wrote, in part: “Neil Gorsuch is a conservative judge and gifted writer who leaves no doubt where he stands, making him a natural successor to the late Justice Antonin Scalia, court watchers said Tuesday . . . . Several rulings where the judge acted to protect religious objectors to Obamacare’s contraceptive mandate earned him praise from conservatives, who predicted he would be a trustworthy vote for them on the high court. And he was also seen as one of the more easily confirmable judges on the list Mr. Trump said he was choosing from.”
Swoyer’s Times colleague S. A. Miller wrote:
The pick immediately drew praise from conservatives, including an outpouring of support from Senate Republicans. “He’s awesome. He’s fantastic,” said Sen. Mike Lee, a Republican who was on Mr. Trump’s list of prospective nominees for the high court . . . . The nomination, however, also quickly found detractors. Liberal groups raised alarms about his stance on gun control, abortion and contraception, environmental protection and the role of big money in politics. “His dangerous views favor polluters and industry over the rights of the people,” said Sierra Club Executive Director Michael Brune. “We strongly urge senators, who are elected to represent and protect the American people, to stand up for families across the nation, oppose this nomination, and use every tool in the shed to block this extremist nominee.”
In the forty-seven days between the nomination and start of the Senate Judiciary Committee hearings, both sides solidified their positions.
On February 10, Senate Minority Leader Charles Schumer stepped into the fray with a New York Times article entitled “We Won’t Be Fooled Again.” In it, he expressed his opinion that Chief Justice John Roberts had not kept his promise, made in his confirmation hearing, to be impartial. Roberts had said he himself would simply be an umpire and would call “balls and strikes.” Instead, according to the senato
r, he became “a tenth player,” putting the Court clearly in the conservative camp. Schumer wrote that Judge Gorsuch gave off a similar vibe. “My fellow senators should know that Judge Gorsuch was eerily similar to Judge Roberts. He played the part but was entirely unwilling to engage in a substantive discussion that—crucially—could have given me confidence in his independence as a judge. Judge Gorsuch must be far more specific in his answers to straightforward questions about his judicial philosophy and opinions on previous cases.”
As Senator Schumer pointed out, the nominee categorically refused to answer those questions, which came as no surprise to citizens, whether or not they are attorneys, who follow Supreme Court nominations.
TRADITIONALLY, THE NOMINEE IS accompanied—the word commonly used is “shepherded”—by a team of same-party individuals led (usually) by a former senator who is known and respected by the senators the nominee will visit, even those of the opposite party. In the case of Neil Gorsuch, the guide (or “shepherd”) was former senator Kelly Ayotte, the moderate Republican from New Hampshire, who narrowly lost her bid for reelection in 2016.
This was an “unlikely selection by Trump,” reported the Washington Post, because “she spoke out against his candidacy and was seen as having been on a blacklist for appointments to the new administration.” Ayotte headed a seven-member team of Republican operatives with both senatorial and White House experience.
In the almost seventy meetings Gorsuch had with senators, he received praise from Democrats as well as fellow Republicans, though no member of the opposite party came forward as a result of those meetings to say he or she would vote in favor of the Gorsuch nomination. This is important because Gorsuch needed eight Democrats to join the Senate’s fifty-two Republicans in order to reach the magic number of sixty votes that would put him on the high court.
But if this did not happen, if he didn’t get eight defectors from the Democratic line—and few analysts thought he would—the Republicans, who controlled the Senate and the Judiciary Committee, could adopt what is called “the nuclear option” and change the rules so that it would take a simple majority (not a supermajority of sixty) to move a nominee for the Supreme Court from the Judiciary Committee to the full Senate for a vote.
In 2013, then–Senate Majority Leader Harry Reid of Nevada changed the Senate rule that had been in place for forty years so that all presidential nominees except for those for the Supreme Court could be approved by a simple majority. He reflected, in a New York Times op-ed article, “We changed the Senate rules to guarantee a president’s nominees a simple-majority vote . . . . I doubt any of us envisioned Donald J. Trump’s becoming the first president to take office under the new rules. But what was fair for President Obama is fair for President Trump.”
A FUNNY THING HAPPENED on the way to the hearings. On several occasions in the first month of his presidency, Donald Trump had attacked, on Twitter, federal judges who had ruled against him or one of his policies, such as the Muslim travel ban, referring to them as “so-called judges.” On February 9, 2017, a day after he had met with Judge Gorsuch in his Senate office, Connecticut Democrat Richard Blumenthal told reporters that when he asked the judge about Trump’s comments, Gorsuch had called them “disheartening” and “demoralizing.” This, of course, was considered major news—a Supreme Court nominee criticizing the president who had nominated him.
Trump’s reaction was to go after Blumenthal. He tweeted, “Sen. Richard Blumenthal, who never fought in Vietnam when he said for years he had (major lie), now misrepresents what Judge Gorsuch told him?”
PolitiFact reported that “Gorsuch has not responded to Blumenthal publicly himself. However, Republican strategist Ron Bonjean, who is assisting the White House on the Gorsuch nomination, confirmed Blumenthal’s account to reporters. Later, other senators said Gorsuch made similar statements in their private meetings, including Sen. Ben Sasse, R-Neb, and Senate Minority Leader Chuck Schumer, D-N.Y . . . . Former Sen. Kelly Ayotte, R-N.H., who is assisting Gorsuch in his Capitol Hill meetings, had a slightly different take. She said in a statement to NBC that Gorsuch said any attack on the judiciary is ‘disheartening’ and ‘demoralizing’—speaking generally rather than responding directly to Trump’s recent comments: ‘Judge Gorsuch has made it very clear in all of his discussions with senators, including Sen. Blumenthal, that he could not comment on any specific cases and that judicial ethics prevent him from commenting on political matters,’ Ayotte’s statement said. ‘He has also emphasized the importance of an independent judiciary, and while he made clear that he was not referring to any specific case, he said that he finds any criticism of a judge’s integrity and independence disheartening and demoralizing.’ ”
The PolitiFact article concluded, “Again, we can’t know for sure exactly what Gorsuch said in his private meetings with Blumenthal and others. It’s possible that Gorsuch responded to Trump’s comments directly, but it’s also possible he was asked about Trump’s comments and then attempted to respond more generally. But a spokesman for Gorsuch confirmed Blumenthal’s account, and several senators said Gorsuch told them that he found Trump’s comments about the judiciary ‘disheartening’ and ‘demoralizing.’ Overall, the evidence seems to point away from Trump’s claim that Blumenthal ‘misrepresents’ his conversation with Gorsuch.”
BY 9:00 A.M. ON Monday, March 20, 2017, the doors to the public entrance of SH 216, Senate Hart (building) 216—the huge hearing room the Senate Judiciary Committee had chosen as the site of its hearings on the nomination of Neil Gorsuch to the United States Supreme Court—were open, and all was in readiness for the hearing.
According to the Senate Historical Office, “The newest of the Senate office buildings is named for Michigan senator Philip A. Hart (1912–1976). In his 18-year Senate career, Hart distinguished himself as a man of deep personal conviction and integrity and a steadfast advocate for the common man, [which] earned him the moniker, ‘The Conscience of the Senate.’ ”
The Hart Senate Office Building opened in 1982, becoming the only congressional office building named after a sitting (or living) member. Both the room and building have had their moments in recent American history. In 2013, the confirmation hearings for Massachusetts Democratic senator John Kerry to become secretary of state were held in SH 216, as were the 2009 hearings for Sonia Sotomayor to join the Supreme Court. And in 2001, the Capitol Police announced the discovery of anthrax in a freight elevator in the Hart Building, which was then closed for a week of decontamination.
From both before and after its opening, the building had fans and detractors. The massive structure—its nine aboveground stories contain a million square feet of internal space, one-third of which is usable space—is covered in white marble from Vermont, with the floor of the atrium Tennessee marble. The centerpiece of the atrium is a huge Alexander Calder structure called Mountains and Clouds, which consists of a mobile made of aluminum plates (the clouds) and a fifty-five-foot-high stabile painted matte black (the mountain). The contrast between the black of the stabile and the white Vermont marble on the surrounding walls is most dramatic.
One of the Hart Building’s fiercest critics was the late senator Daniel Patrick Moynihan (D-NY). Dismayed by both its look and its price tag, in May 1981 he introduced a satirical Sense of the Senate resolution that read: “Whereas in the fall of 1980 the frame of the new Senate Office Building was covered with plastic sheathing in order that construction might continue during winter months; and Whereas the plastic cover has now been removed revealing, as feared, a building whose banality is exceeded only by its expense; and Whereas even in a democracy there are things it is well the people do not know about their government: Now, therefore, be it resolved, that it is the sense of the Senate that the plastic cover be put back.”
Moynihan’s criticism aside, three decades after its opening, the Hart Senate Office Building is a well-received, if not necessarily well-loved, part of the Capitol grounds.
THE LAST TIME NEIL G
orsuch faced Senate confirmation—in 2005, when President George W. Bush nominated him to be a judge on the Court of Appeals for the Tenth Circuit—he was approved by a unanimous voice vote. Nothing even remotely close to that was expected to happen this time. The stakes were too different, and the political climate was, in a word, ugly.
Like all its predecessors, the Gorsuch hearings began with statements. First, the committee chair and the ranking minority member would read their opening statements, and then the remaining eighteen individual members (ten Republicans and eight Democrats) of the Judiciary Committee would read theirs. Committee chairman Chuck Grassley (R-IA) had said the hearings would take three or four days.
Court watchers and other interested parties had a good idea of what was to come. When the new president nominated Gorsuch, Senator Elizabeth Warren (D-MA) reacted almost viscerally. In a speech on the Senate floor, in addition to “disastrous,” she called the president’s nomination “a threat to our American values.”
A very different view of the same man appears in the bipartisan letter sent on Tuesday, February 14—Valentine’s Day—to Senators Grassley and Feinstein, the ranking Republican and Democrat on the committee. Signed by thirty-nine of Judge Gorsuch’s former clerks not currently clerking for a justice, it stated, “Our political views span the spectrum, and among us you will find differing views on how the Senate handled the nomination of Judge Merrick Garland,” they wrote, “but we are united in our view that Judge Gorsuch is an extraordinary judge. All of us strongly support his confirmation as the next Associate Justice of the Supreme Court.” The former clerks said he had the ability to transcend partisan politics and honor both the Constitution and the rule of law with “tremendous care and discipline.”