Gorsuch

by John Greenya

  The nominee went on to thank, in order, his wife and children, his parents and grandparents, several other relatives, “my fellow judges across the country,” and his legal mentors (especially Justices White and Scalia), and closed by describing what it had meant to him, over the past decade, to be a judge. (For a complete version of Judge Gorsuch’s statement, see Appendix A.)

  ON TUESDAY AND WEDNESDAY, the twenty-second and twenty-third of March, the Judiciary Committee members went at it long and hard—long on both sides of the aisle and hard on the Democratic side. With the questioners alternating between Republicans (the majority, because the Senate is controlled by that party) and Democrats, the tone and content changed from gushing praise to acidic denunciation with the speed of a badminton bird.

  When Senator Patrick Leahy (D-VT) asked Gorsuch if he thought the president had the power to authorize torture if it violated the law, the nominee, sounding like the law professor he has been, quickly listed torture-banning precedents and then, when the senator repeated the question, declared, “No man is above the law,” an answer that gave hope to those who feared that Gorsuch, once on the Court, would do only what Trump and the hard right wanted.

  Another exchange that seemed to imply his independence from the man who had nominated him occurred when Lindsey Graham (R-SC) asked him what he would do if the president asked him to vote to overturn Roe v. Wade Gorsuch, in a voice that was both louder and firmer than usual, replied, “Senator, I would have walked out the door.” (“At that,” CNN reported later that day, “the room fell silent.”) But Gorsuch wasn’t finished with his answer, adding, “That’s not what judges do. They don’t do it at that end of Pennsylvania Avenue, and they shouldn’t do it at this end either.”

  When Patrick Leahy asked him if a blanket religious test would be consistent with the Constitution, the man hoping to become the 113th justice of the U.S. Supreme Court replied, “We have a constitution and it does guarantee free exercise. It also guarantees equal protection of the laws. And a whole lot else. The Supreme Court . . . said that due process rights extend even to undocumented persons in this country. I will apply the law. I will apply the law faithfully and fearlessly. Anyone, any law is going to get a fair and square deal with me.”

  Chairman Grassley then wondered if Gorsuch would have trouble ruling against Donald Trump, who twice during the campaign had criticized judges who’d ruled against him, labeling them “so-called judges.” Gorsuch replied, “That’s a softball [question], Mr. Chairman. I have no difficulty ruling against or for any party . . . based on what the law and the facts in the particular case require.”

  As for the Democrats’ concern, voiced by ranking minority member Dianne Feinstein, that he favored corporations, i.e., the big guy, over workers, the little guy, Judge Gorsuch said, “I’d like to convey to you, from the bottom of my heart, that I am a fair judge . . . . I have participated in 2,700 opinions over ten and a half years, and if you want cases where I’ve ruled for the little guy as well as the big guy, there are plenty of them.”

  Time and again, Democratic senators tried to get the nominee to say how he would rule on certain types of cases in the future, and time and again Gorsuch would refuse, causing one senator to remark that he had “set a new standard for evasiveness.” But, in fact, the nominee was only following the example set in 1993 by the liberal heroine Ruth Bader Ginsburg (aka “The Notorious RBG”), who’d famously said, as noted earlier, that she would give “no hints, no forecasts, no previews.” Nonetheless, the Democratic senators—who had to be well aware that no matter how many times it was rephrased, he was not going to answer that type of question—persisted, apparently in the belief that they were making Gorsuch look bad.

  By the middle of day three of the hearings, the proceedings began to resemble Japanese Noh theater, the slow-moving classical plays that can last as long as eight hours. Gorsuch managed at all times to keep his composure and showed few signs of the frustration he must have felt at being dragged over the same ground again and again.

  From time to time that pent-up frustration resulted in a quotable line, as when, at the end of day two, which ran for ten straight hours, Rhode Island Democrat Sheldon Whitehouse kept at Gorsuch over the Citizens United case (which held that corporations could give money to political campaigns without having to disclose the identity of their donors). Later, Senator Mike Lee (R-UT), calling it “unfair” for Whitehouse to belabor Gorsuch with questions about Citizens United–related issues, asked the nominee if he’d had any involvement in the Supreme Court ruling.

  “I was not involved,” Gorsuch said, and then added, forcefully, “Nobody speaks for me. Nobody. I am a judge. I don’t have spokesmen. I speak for myself.”

  WITH THE NOMINEE NOT present, the fourth and final day of the hearings was given over to expert witnesses, both pro and con. The for-Gorsuch experts had, by and large, been invited by the Republicans on the committee, and the antis—mainly representatives of women’s and environmental groups—had asked to be heard or had been invited by the Democrats. Their statements and positions generally echoed those of the Republicans and Democrats on the committee.

  When Mitch McConnell realized that Minority Leader Chuck Schumer (D-NY) was serious about filibustering to delay the full Senate’s vote on Gorsuch (Republicans wanted him on the Court as soon as possible so that he could, and they believed would, cast the deciding conservative vote on several cases believed to be deadlocked four to four), the Majority Leader announced he would use what is termed the “nuclear option”—dropping the requirement for approval of the nomination from sixty to fifty votes (plus the vice president’s)—and that is what he did.

  Senator Joe Manchin, the West Virginia Democrat who had voted for Gorsuch but opposed changing the rules, told the Washington Post, using a rather archaic metaphor, that “George Washington had it right when he called the Senate ‘the saucer’—We’re the saucer—should be anyway. Should be cooling off that tea . . . . The hot tea’s going to scald you now. It’s going to burn you.”

  Senator Susan Collins (R-ME), a critic of the nuclear option, said the fault lies in what the Senate has become: “There’s such a profound lack of trust, and that’s what many of us are committed to trying to rebuild. We need to make very clear to the leaders on both sides that there’s no support for curtailing our existing ability to filibuster legislation.”

  Her leader in the Senate, Mitch McConnell, agreed with Senator Collins about the need to preserve the legislative filibuster, but had his own idea of who was to blame for his having deployed the nuclear option—the Democrats. In a Sunday, April 9, op-ed page article in the Washington Post, he wrote:

  The day after Neil Gorsuch’s nomination to the Supreme Court was announced, I wrote about his sterling credentials, record of independence and long history of bipartisan support—and predicted they would matter little to hard-left special interests that invariably oppose the Supreme Court nominees of any Republican president. I asked Democrats to ignore those extreme voices and their attacks and join us instead in giving Gorsuch fair consideration and an up-or-down vote, as we did for the first-term Supreme Court nominees of Presidents Bill Clinton and Barack Obama.

  Unfortunately, Democrats made a different choice . . . .

  On Thursday, Democrats mounted the first successful partisan filibuster of a Supreme Court nominee in U.S. history; in other words, a partisan Democratic minority tried to block the bipartisan majority that supported Gorsuch from even voting on his nomination. It was a direct attack on the traditions of the Senate and yet another extreme escalation in Democrats’ decades-long drive to transform judicial confirmations from constructive debates over qualifications into raw ideological struggles.

  Their success in tearing down Robert Bork in 1987 taught Democrats that any method was acceptable so long as it advanced their aim of securing power. In 2003, when President George W. Bush was nominating judges, Democrats pioneered the idea of using routine filibusters to stop them; in 2013
, when Obama was nominating judges, Democrats invoked the “nuclear option” to prevent others from doing the same. It was a tacit admission that they should have respected the Senate’s long-standing tradition of up-or-down votes for judicial nominees in the first place.

  The Majority Leader closed with this thought: “I ask Democrats to consider the significant things we’ve been able to achieve in recent years when we worked together. Democrats can continue listening to those on the left who call for blind ‘resistance’ to anything and everything this president proposes, but we can get more done by working together. Perhaps this is the moment Democrats will begin again to listen to the many Americans—the people who sent us here—who want real solutions, so we can work together to help move our country forward.”

  ON FRIDAY, APRIL 7, by a vote of fifty-four to forty-five, the U.S. Senate confirmed Neil Gorsuch as the 113th justice of the Supreme Court. The Republicans had tried to get him confirmed under the old sixty-yes-vote rule, but when that failed they, led by McConnell, methodically moved to change the rules so that all that was needed for the nominee to be confirmed was a simple majority. The next vote made Neil Gorsuch a member of the United States Supreme Court.

  THE CONFIRMATION PROCESS FEATURED two unusual displays of physicality. The first came when Senator McConnell came off the Senate floor. Flush with victory, he awkwardly high-fived several fellow Republican colleagues, in a manner that made it obvious he is not comfortable with the gesture.

  The second display occurred the following Monday immediately after the swearing-in in the Rose Garden of the White House. After having been sworn in by Justice Anthony Kennedy, once his boss and mentor and now his fellow justice, Neil Gorsuch, now officially a Supreme, stepped forward and put his arms around and hugged Anthony Kennedy. While being hugged, Justice Kennedy, apparently surprised by Gorsuch’s impulsive gesture, kept his arms at his side and did not return the hug.

  IN THAT ROSE GARDEN ceremony, the proud president said, “I got it done in the first 100 days . . . you think that’s easy?” Press Secretary Sean Spicer followed suit, proclaiming: “As we hit day 81 in the President’s administration, we have done so many great things, including nominate and confirm a Supreme Court justice, roll back more regulations than any president in modern times, roll back the Obama-era war on coal, oil and natural gas, restore confidence in the economy . . . . We’re now seeing historic levels of consumer, CEO, homebuilder, manufacturer confidence. There’s been a 12% gain on the stock market. And we’ve even seen a real resurgence in the mining industry.”

  The New York Times agreed, at least in part:

  The moment was a triumph for President Trump, whose campaign appeal to reluctant Republicans last year rested in large part on his pledge to appoint another committed conservative to succeed Justice Antonin Scalia, who died in February 2016. However rocky the first months of his administration may have been, Mr. Trump now has a lasting legacy: Judge Gorsuch, 49, could serve on the court for 30 years or more.

  “As a deep believer in the rule of law, Judge Gorsuch will serve the American people with distinction as he continues to faithfully and vigorously defend our Constitution,” the president said . . . . The confirmation was also a vindication of the bare-knuckled strategy of Senate Republicans, who refused even to consider President Barack Obama’s Supreme Court pick, Judge Merrick B. Garland, saying the choice of the next justice should belong to the next president.

  The Times editorial continued: “The bruising confrontation has left the Senate a changed place. Friday’s vote was possible only after the Senate discarded longstanding rules meant to ensure mature deliberation and bipartisan cooperation in considering Supreme Court nominees.”

  Several days later, Linda Greenhouse, the Times’ widely respected legal correspondent, wrote a column entitled “The Broken Supreme Court,” in which she said that by changing the rules, the Republicans had jeopardized the Court:

  It was raw politics all the way down, without even a fig leaf of a nonpolitical rationale. I’m not naïve. All presidents yearn for a Supreme Court legacy, and many tell fibs about the nominees they choose. President Reagan presented Robert H. Bork as a “moderate.” He wasn’t. President George H. W. Bush described Clarence Thomas as the best-qualified person for the job. He wasn’t. That’s all just part of the game. Of course the Supreme Court nomination and confirmation process is political; how could it be otherwise?

  But the Republicans rewrote the rules well before their decision last week to abolish the filibuster for Supreme Court confirmation votes. Making an existing Supreme Court vacancy a highly visible part of an electoral strategy stamps the court as an electoral prize, pure and simple. In doing so, it places the court in a position of real institutional peril.

  CONSERVATIVE REPUBLICANS WERE EAGER for Gorsuch to join the Court and start hearing—and voting on—cases, including several that had already been argued, with no decision rendered, and brand-new cases that the Court will take up at the end of the 2016–17 term. The subjects of these cases include a California case that will test the state’s restrictions on carrying a concealed gun in public, a religious rights versus gay rights case, and one involving funding limits for church schools.

  The first two of those three cases may or may not be heard in this term, as they are unscheduled, but the third, the Trinity (Missouri) Lutheran case, was heard on Wednesday, April 19, Gorsuch’s third day on the Court. The dispute in the case arose when Trinity Lutheran Church, which operates a preschool, applied to the state of Missouri for a grant to rubberize (using material from old tires) the surface of its playground and was turned down because the state’s constitution bars giving money “directly or indirectly, in aid of any church, sect, or denomination of religion.” Claiming the state’s denial constituted an unconstitutional burden on its free exercise of religion, the church sued.

  Conservatives hoped that Gorsuch’s dissenting vote as an appellate court judge in the Hobby Lobby case (he was in favor of giving a religious exemption to a Christian family business that had refused to pay for insurance that provided contraceptives for its employees) meant he would rule for the church in the Trinity Lutheran case. The justices kept the lawyers on their feet for more than an hour of intense questioning, but Gorsuch himself was quiet, in contrast to his first day as a justice, two days earlier.

  Justice Sonia Sotomayor commented, “I’m not sure it’s a ‘free exercise’ [of religion] question. No one is asking the church to change its beliefs. The state is just saying it doesn’t want to be involved in giving [public] money to the church.” But her colleague Elena Kagan said, “You’re denying one set of actors from competing [for the grant money] because of religion,” which, she said, is a “clear burden on a constitutional right.”

  And Justice Stephen Breyer, generally considered a liberal, wanted to know, “[D]oes the Constitution of the United States permit a state or a city to say, ‘We give everybody in this city police protection, but not churches? We give everybody fire protection, but let churches burn down?’ ” Because Gorsuch asked the state’s lawyer just a few brief questions, there was no hint as to how he might rule, thus thwarting any predictions based on his vote in the Hobby Lobby case. There was a touch of the surreal—or, to borrow Senator Franken’s word, “absurd”—about the whole proceedings because, as SCOTUSblog reported, “Moreover, the justices seemed inclined to go ahead and decide the case even though Missouri had announced last week that it had changed the policy at issue in the case to allow churches to compete for the grants in the future.” Apparently the fact that twenty-three other states have laws on their books similar to the Missouri ban was a factor in the Court’s decision to go ahead with arguments in the Trinity Lutheran case. According to SCOTUSblog, “The end result could be an important ruling on the disbursement of funds by state and local governments to religious institutions.”

  Conclusion

  When, on April 7, 2017, Neil McGill Gorsuch was confirmed as a member of the United S
tates Supreme Court, the forty-nine-year-old jurist became a very distinguished person in the eyes of the outside world. Not so inside the Court itself, which has seen dozens of its members come and go over the years. To them, Neil Gorsuch was a newbie, a rookie, and was treated as such.

  The newest justice has to take notes during private Court conferences (if there are no clerks or court assistants around) and must speak last when they discuss how they plan to vote after they’ve heard oral arguments. This doesn’t sound all that demeaning, but the neophytes’ duties don’t end there.

  One task sounds like the high court version of KP. As Elena Kagan told Neil Gorsuch and his fellow appellate judge Tim Tymkovich at an event in Colorado, “I’ve been on the cafeteria committee for six years. Steve Breyer was on the cafeteria committee for 13 years. I think this is a way to kind of humble people. You’ve just been confirmed to the United States Supreme Court. And now you’re going to monthly cafeteria committee meetings where literally the agenda is ‘What happened to the good recipe for chocolate chip cookies?’ ”

  Kagan reportedly contributed to a frozen yogurt machine in the cafeteria after she was confirmed in 2010—she also had to go fix a colleague’s soup if it was “too salty.” Another thing, and this is the most important junior justice responsibility, is, “I open the door,” Kagan said. “Literally, if I’m like in the middle of a sentence—let’s say it’s my turn to speak or something—and there’s a knock on the door, everybody will just stare at me, waiting for me to open the door. It’s like a form of hazing. [Chief Justice John Roberts told a judicial conference in 2011 that cafeteria duty is meant to bring new justices “back down to earth after the excitement of confirmation and appointment.”] So that’s what I do, I open the door. Pronto.”

  IN HENSON V. SANTANDER Consumer USA, his first opinion as a justice on the United States Supreme Court, Neil Gorsuch wrote: