Cross-posted at Esquire.
The battle over Supreme Court nominee Neil Gorsuch wasn’t lost during his Senate Judiciary Committee confirmation hearing. It was lost last year when progressives failed to adequately express the outrage they felt over the way Republican lawmakers blocked the nomination of Merrick Garland to the seat Gorsuch will soon hold. It was over when the offices of Senate Majority Leader Mitch McConnell, the Kentucky Republican, and Judiciary Committee Chairman Charles Grassley, the Iowa Republican, weren’t flooded with angry letters and emails and phone calls from people demanding that Garland get at least a hearing and a vote. It was over when no one called the Republican bluff.
It was over when the Obama administration, inexplicably, failed or refused to adequately press the legal and political case to get Garland that hearing and a vote. It was over when too many Democrats believed, tragically, it turns out, that they could wait out the Garland nomination and have President Hillary Clinton re-nominate him. It was over when Donald Trump became president. It was over because conservatives always have cared more about the federal judiciary than liberals, or at least always have had a more cynical strategy to ensure ideological primacy in the nation’s courts. Neil Gorsuch is to blame for none of that. He ends up being the guy in the right place at the right time. Like the guy who takes home the prize at the fair because the guy with the winning ticket can’t find it.
His confirmation hearing this week was, predictably, devoid of any details about his judicial philosophy or ideology. But it was not devoid of insight. Judge Gorsuch revealed himself to be something different than the folksy Westerner, the Gary Cooper, that his marketing people want the American people to think he is. He is an honorable man. He has impeccable credentials and qualifications and an obvious mastery of the law. He also is every bit the conservative ideologue that his most suspicious critics think. For all the happy talk of judicial independence and equal justice, of the earnest zeal to “faithfully” apply the law, all the mansplaining about judicial humility and deference, Justice Gorsuch is going to rule overwhelmingly in favor of conservative causes and principles, just like the man who preceded him, Antonin Scalia. To paraphrase John Roberts famous quote: Justice Gorsuch will call balls and strikes all right, just like an umpire, only one team will get almost all of the strikes and the other almost all of the balls. No one should pretend otherwise.
Every judicial nominee promises to “judge the law neutrally.” Every judicial nominee pledges to keep an open mind. Every candidate sucking up for Judiciary Committee votes says he or she will respect precedent and be true to constitutional values. And then the nominee becomes a judge, or a justice, and is free to “judge the law neutrally” in a way that hews to his or her own political orthodoxy. This is true of Democratic nominees and it is true of Republican nominees and it explains why so many of the most contentious political cases end up with sharply-divided opinions of the Court. This is precisely the point an exasperated Sen. Richard Durbin made Thursday morning when trying to pin down the patronizing nominee. The law is not nearly as clear as anyone wishes it to be. There is room in every single hard case for competing judicial philosophies to generate reasonable rulings that are diametrically opposed. It has always been this way and always will be this way. “I don’t see Republican judges and I don’t see Democrat judges,” the nominee kept saying, as if saying it over and over again makes it so. If it were so, Justice Garland would be working his way through his first term as the junior justice.
The nominee’s ties to Colorado billionaire Philip Anschutz, only briefly explored during the hearing, tell us more about what Gorsuch will mean to America than his homespun talk of mutton-busting and family ski trips. The nominee was born with a silver ski on his foot and he has been chosen for the High Court by the Trump administration specifically because of his politics, as expressed through his work for the Bush administration, his time in private practice, and the jurisprudence he has revealed during his time as a federal appeals court judge. The think tanks and dark money donors who supported his nomination didn’t just buy into him on spec. Sen. Lindsey Graham was at least candid enough about that on Thursday. The nominee isn’t a moderate compromise selection designed to occupy the Court’s center. He’s not an olive branch to the party that won the popular vote. The Republican plan for Justice Gorsuch is to patrol the furthest right wing of the court with Justice Samuel Alito.
And that is precisely what he will do. Good news for big corporations. Bad news for environmentalists. Good news for prosecutors. Bad news for citizens seeking to wrong injustice. Good news for those seeking more religion in government. Bad news for those fighting for voting rights and civil rights and consumer rights and equal rights for women. Good news for those seeking to dismantle the regulatory state. Bad news for those who believe states may lawfully permit physician-assisted suicide. Good news for the Second and Tenth Amendments. Bad news for the Sixth and Eighth Amendments. There is precedent and then there is precedent. And every justice who ever has sat on the Supreme Court has imbued his or her decisions with deeply personal policy.
Is it possible that Justice Gorsuch will one day betray those who have spent so much to support his nomination? Sure. He will occasionally surprise the country with a ruling that angers conservatives and heartens liberals. It may even happen a few times each term. Is there a chance he will move more consistently toward the center, as so many Republican justices have done over the past 50 years? That’s possible, too. The one mystery about this nominee, about any lifetime judicial nominee really, is the impossibility of knowing what sort of judge that person will become after 10 or 20 or 30 years of sitting on the bench. The experience, we know, changes some people more than others. But, today, there is no reason to think that Justice Gorsuch is going to become a Justice Souter or a Justice Stevens. Those jurists truly were moderates, and practical men, who stayed toward the center as the conservative legal movement churned rightward past them.
The difference between Neil Gorsuch and Merrick Garland is the difference between Donald Trump and Hillary Clinton is the difference between Republican and Democratic control of the Senate. It is a difference that ought to forever end the debate that there is no difference between the political parties and that elections don’t really matter because Washington is Washington is Washington. The ideological gulf between Garland and Gorsuch is going to make a difference in the lives of every American today and every person yet to be born here in the next half century or more. And that’s going to be true even though half those people won’t ever be able to name a single justice, including Justice Gorsuch, when some pollster asks about it years from now.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.
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