The judicial test Neil Gorsuch can’t pass

The moral test, which asks whether a nominee’s opinions adversely or positively will affect the lives of ordinary Americans, is far more important than what they've been trying to talk about in Gorsuch's confirmation hearings.

SOURCEMoyers and Company

How much do you know about Supreme Court nominee Neil Gorsuch? Chances are, it isn’t much, though the appointment of Gorsuch, who at 49 probably will serve on the court for 30 or more years, may likely be the most consequential decision so far of Donald Trump’s presidency.

According to James Downie in The Washington Post, those consequences almost certainly will include votes to overturn the Chevron decision that requires courts to defer to administrative agencies’ interpretations of statutes, to curb class-action suits and replace judicial remedies with arbitration (which gives corporations enormous power over aggrieved employees and consumers), to scale back civil rights, deploy religious “freedom” as a way of denying freedoms to members of the LBGQT community and defund Planned Parenthood, to name just a few.

He unquestionably also will vote to overturn Roe v. Wade, however much he may have dodged that question during his confirmation hearings. In short, he will put the nation in reverse.

You didn’t hear much about these things during his testimony because Gorsuch wasn’t talking about them, or about anything else for that matter. Sen. Dianne Feinstein (D-CA) complained, “You have been very much able to avoid any specificity like no one I have seen before.”

Of course, there are political reasons why Republicans have eviscerated confirmation hearings. They hoped to hoodwink a few squishy Democrats into voting for their nominee and avoid a filibuster. And they hope to keep liberal interest groups off the warpath. Republicans remember all too well what happened in 1987 when Reagan Supreme Court appointee Robert Bork grandstanded, talking expansively about the court as an “intellectual feast” and casually promising to delete one right after another because those rights were not explicitly enumerated in the Constitution.

Republicans, even now still seething over Bork’s defeat, vastly prefer anodyne hearings in which the only issue is a nominee’s competence and judicial qualifications, though, as usual with conservatives, hypocrisy abounds. No one doubted Merrick Garland’s competence, but he isn’t sitting on the court and didn’t even get a hearing.

But there is another reason why Republicans have hollowed out confirmation hearings, and it goes beyond politics to the larger question of basic human decency. Republicans emphasize competence because they are deathly afraid of another test: the moral test that asks whether a nominee’s opinions adversely or positively will affect the lives of ordinary Americans.

Skirting the moral test is why the entire confirmation process is a charade, an exercise in hiding rather than revealing. Gorsuch was a real maestro at it. Dana Milbank of The Washington Post compared his performance at the hearings to that of Eddie Haskell on Leave It to Beaver – the kid who sucked up to adults and told them what they wanted to hear.

Gorsuch denied that he is the captive of anyone and insisted that he is entirely his own man. If Trump had asked him about Roe v. Wade, he said he would have walked out the door. Does anybody really believe that? At one point earlier in his career, he even had the gall to write an editorial complaining about “‘stealth candidates’ who are perceived as likely to advance favored political causes once on the bench,” as if he were Oliver Wendell Holmes and not a Republican stalwart himself.

He repeatedly told the senators in the hearing room he couldn’t discuss previous cases because he may have to rule on them, though nominees are perfectly free to discuss issues of law, just not a particular case that may come before the court. And like all recent Republican nominees, he genuflected before the power of precedent without committing himself to follow it.

This seemingly principled ooze, as we know from past experience, is utter nonsense. Gorsuch is a proven conservative Republican first and a judge second. There was a time, not even so long ago, when justices really were independent, among them David Souter, William Brennan, Harry Blackmun and Byron White, all of whom thwarted the expectations of the presidents who appointed them.

But Clarence Thomas, John Roberts, Samuel Alito and now Gorsuch, despite their protestations, are reliable ultra conservatives. As all of them have been, Gorsuch is a member of the Federalist Society, a legal cult that sells the snake oil of originalism – that is, the idea that the Constitution means only what its framers said it meant when they wrote it – except when it doesn’t. (Sen. Amy Klobuchar (D-MN) called Gorsuch a “selective originalist.”)

If Gorsuch were really as unencumbered as he purports to be, he wouldn’t have joined the Federalist Society to begin with. You can be an ideologue or you can be an independent-minded jurist. You cannot be both.

Gorsuch certainly knows this, which is precisely why he, like Thomas, Roberts and Alito, pretended to have no ideological predisposition whatsoever. Roberts certainly was being disingenuous when, during his hearing, he compared himself to an umpire calling balls and strikes, as if laws were frozen in time and jurists were automatons. But every baseball fan knows that the strike zone is elastic, smaller or larger depending on the umpire. And unlike baseball umpires, who are allegedly neutral, Roberts long ago pledged his allegiance to a team: corporations. He has always known which side he was on. The fix was in.

This flapdoodle of objectivity, which Republicans lap up, is intended to convince the public that the law is sterile and immutable, which is, not incidentally, also a way to invalidate the moral test. So-called “activist” judges may try to stretch and bend the law, but in doing so, conservatives say, they are playing with the law, not strictly interpreting it. Conservatives, on the other hand, declare their helplessness in the face of the law. There is no wiggle room. It is their defense when, as they invariably do, they favor the powerful over the powerless. How could they do otherwise?

So let’s get this out of the way. I don’t care what you call yourself, an originalist, who can read the framers’ minds, or a textualist, who relies on the exact words of the Constitution, or any other kind of “ist,” every judge is an activist, every judge uses the law for his own purposes. Justice Arthur Goldberg once told a clerk that you determine what you want the outcome of a case to be and then work backward to the law. Conservatives will pretend to be scandalized by this, but it is, I imagine, how every justice works. The law isn’t immutable. It is malleable.

That’s why we need a moral test – to see how a justice will bend the law and to what end. The decisions the court makes are very likely to affect your life, whether you know it or not. They will affect the quality of the air you breathe and the water you drink, the safety of your workplace, your ability to sue, your protection from search and seizure, your access to health care, the protection of your voting rights, your right to marry, and a thousand other things.

Seen this way, I think the oppositions of “conservative’ and “liberal” or “originalist” and “pragmatist” or “originalist” and “activist” are misleading, simply ways of justifying preordained positions by relying on allegedly deep legal principles.

The real opposition, I believe, is between “institutionalists,” who care first and foremost about institutions, and “humanists,” who care about people. The difference between an Alito or Gorsuch, and a Souter or Ruth Bader Ginsberg, is that the latter believe that the very function of the law is the public good and the former don’t. In most arenas, that would be called a moral difference.

During all his deflections, Gorsuch slipped up once and put himself squarely on the institutionalist side when Sen. Al Franken (D-MN) asked him about a dissent Gorsuch filed against a truck driver whose vehicle had broken down. The temperature outside was 14 degrees below zero, and after waiting hours for help, the driver finally walked away from his truck.

The driver was fired. Rightfully so, opined Gorsuch, while claiming, “I totally empathize” with the driver. Just not enough to rule in his favor. “I had a career in identifying absurdity,” riposted Franken, the former Saturday Night Live writer and performer, “and I know it when I see it.” But Gorsuch just couldn’t bring himself to rule against the company; it just wasn’t in his DNA. For an institutionalist like him, ordinary people could never come first.

That is precisely what Republicans are counting on. Gorsuch has been described as “Scalia minus the rough edges.” Scalia was clever and engaging, but he also could be a pompous and arrogant bully, a judicial Trump. He never seemed to care about how his decisions would affect ordinary Americans. In fact, he seemed to be proud of choosing institutions and legal mumbo jumbo over common decency. Doing so was what made him the very model of a conservative judge. He was heroic for lacking an iota of compassion.

No doubt Gorsuch will be confirmed this week. And I strongly suspect he will spring no surprises once he takes the bench. Like Scalia and Thomas, he will hurt people and empower corporations. He will scale back rights. He will prefer religious intolerance over religious generosity. He will always take the most backward-looking interpretation of the Constitution over the most forward-looking one. (He actually has promised to do so.)

But know this: while he curries favor with his fellow stone-hearted conservatives and with the rich and powerful whose interests he will serve, he will fail the moral test. This may mean nothing in the legal world, and it surely means less than nothing in the world of conservatives. In the world of ordinary human beings, however, it means everything.


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