The affable, folksy Judge Neil Gorsuch went on an all-out charm offensive in front of the Senate Judiciary Committee on Tuesday, but the aw-shucks campaign masks the real reasons Democrats must filibuster his nomination unless some kind of agreement on the next Supreme Court nominee can be reached with Republicans.
Democrats shouldn’t fall for it. Of course, Gorsuch looks and sounds great. He said “Oh, Goodness” three times in the morning session alone, and twice more in the afternoon. He recounted when someone told him “Son, you’re a young Perry Mason.” You can’t help but like the guy.
But Gorsuch isn’t nominated for Miss Congeniality. It doesn’t matter whether he’s a nice guy or not, and the significance is more than cosmetic. Republicans’ questions and Gorsuchs’s answers are all misdirection. They’re about a false dichotomy between “fair and honest judge” and a straw man: some judge who decides cases before he hears them based on “bias.”
Senator Orrin Hatch, for example, said that according to liberals, Gorsuch is “biased” in the direction of corporations over employees. That’s totally incorrect. Progressives aren’t saying he’s biased – we’re saying he has a judicial ideology that consistently, statistically leads him to one set of results over another.
According to Gorsuch, that pattern doesn’t exist. He said, over and over, “I leave my personal views at home.” “I believe you should approach the law as you find it.” “I decide based on the facts and the law.” “It’s not about agreeing or disagreeing, senator – it’s about the law.” “From the bottom of my heart, I am a fair judge.”
This is all empty talk, aimed at a straw man. No one is accusing Gorsuch of being biased, unfair, or prejudiced. The claim is that he has a sincere, extreme judicial ideology that tends to dictate results.
That, after all, is why the Heritage Foundation and Federalist Society love him so much. Not because he’s biased or unbiased—but because he has a set of beliefs about the law, beliefs that tend to lead to certain results.
As Senator Patrick Leahy put it, “The president outsourced your selection to far right, big money interest groups, and they have an agenda. They’re confident you share their agenda. That’s why they called you ‘a nominee who understands things like we do.’”
Exactly. But Leahy fumbled when he tried to turn his statement into a question, letting Gorsuch off the hook. What he should have asked is this: If you just apply the law as you see it, why do right-wing ideologues all support you so strongly? Are they simply mistaken? Or is it in fact the case that you have a judicial ideology – not a bias, an ideology—that gives them confidence you’ll rule the way they want?
By framing the question as “Is Judge Gorsuch biased, or fair?” Republicans are misdirecting the entire proceeding. Of course Judge Gorsuch is fair. But he is also an ideologue with an extremely conservative, right-of-Scalia record. Fairness and ideology are not mutually exclusive.
For example, when the conversation turned to the Religious Liberty Restoration Act (RFRA), Judge Gorsuch noted how fair-minded he’s been, applying the law to a Muslim prisoner denied a halal meal. There was no discussion of the actual issues: whether RFRA applies to corporations, whether it allows businesses to discriminate against women and LGBT people on the basis of a religious belief, whether it covers harming third parties at all.
You don’t have to be biased, or a tool of powerful interests, or focused on outcomes rather than the law, to come down one way or the other on those questions. But if you have an ideology like Judge Gorsuch’s, which has consistently favored corporate power and consistently expanded the meaning of “religious liberty” well beyond what RFRA’s authors intended, then you’re going to answer yes to all three of those questions, with disastrous results for women and minorities.
But Gorsuch didn’t answer any of those questions. He just said ‘Oh Goodness’ and reminded us that he’s a fair judge who applies the law in each case. He glided over the question of how he applies the law, which is the whole point.
The second issue papered over by Gorsuch’s charm offensive is that these hearings shouldn’t be happening at all: Senate Republicans stole this seat from President Obama and his nominee, Judge Merrick Garland.
“I can’t get involved in politics,” said Gorsuch when asked about Judge Garland. But Judge, you are involved in politics. You are at a Supreme Court confirmation hearing in front of the Senate Judiciary Committee. What could be more political than that?
And anyway, you’re not some Midwestern County Judge – you’re a former official in the Bush White House who said some tricky things about torture. You’re a nominee hand-picked by two hard-right groups funded by the usual hard-right sources. You are involved in politics, whether you like it or not.
And sadly, you are a pawn in a political game, just like Judge Garland was. In an ordinary year, you’d be confirmed in a heartbeat, conservative ideology and all. Sure, you have views on corporate power, presidential power, and other issues that Democrats find troubling, but that’s how the system works.
But this isn’t an ordinary year, and you know it. No matter how decent you are, how smart you are, and how fair you are, your nomination is illegitimate. Democrats cannot reward the unprecedented and unconstitutional Republican tactics of 2016. As with Garland, it is tragic that a good, honest judge is a victim of this game. But Democrats didn’t start this game, and they can’t afford to lose it.
The only way out is a compromise.
Because Judge Gorsuch is a judicial clone of the late Justice Scalia, he is a suitable replacement for him. But the White House and Senate Republicans must promise, as part of the deal, to nominate a moderate to replace Justice Kennedy if he resigns, or a liberal to replace a liberal justice. One for one, and then we can go back to the way it was, with competent nominees being confirmed without regard to ideology.
There must be a correction of the wrongs of 2016. If there is, Democrats can confirm a conservative ideologue. But if there is not, they simply cannot do so.
Judge Gorsuch is smart, good-looking, and affable. But this is not a beauty contest or a Hollywood musical. The people whose lives he will affect will not care how charmingly he ruled against them.