Ruth Bader Ginsburg, the diminutive liberal colossus of the Supreme Court, has built a distinguished record as a Justice, but her legacy as a nominee is more dubious. In her confirmation hearing before the Senate Judiciary Committee, in 1993, she refused to answer most questions about how, if confirmed, she would rule. In an oft-quoted phrase, she vowed to give "no hints, no forecasts, no previews." Nominees have invoked this stonewall ever since. Last week, Neil Gorsuch, Donald Trump's choice to fill the seat of the late Antonin Scalia, proved an especially ardent follower of what has come to be known as the Ginsburg rule.
Asked repeatedly by members of the committee about his views of such cases as Roe v. Wade and Citizens United, Gorsuch not only refused to answer but went on to say that his feelings, if he had any, were of no consequence: "It's not a matter of agreeing or disagreeing. It's a matter of it being the law, and my job is to apply and enforce the law." Gorsuch portrayed himself as a kind of judicial automaton, obligated to pay mindless obeisance to the Court's prior rulings. This interpretation of the role of Supreme Court Justices is, to put it charitably, incorrect—they can and do overturn their earlier holdings. And Trump didn't nominate Gorsuch simply because he knows how to follow precedent. He nominated Gorsuch because his career resembles a lab experiment synthesizing every trend in modern conservative thought.
A ruggedly handsome Coloradan—this President cares a great deal about appearances—Gorsuch has an appealing manner and an impressive résumé. He did well in good schools, held prestigious clerkships, worked at a fine law firm, took a senior post in the Department of Justice, and for the past decade has served on the Tenth Circuit Court of Appeals. From his boyhood days as a Republican Senate page to his decades of volunteer work for G.O.P. candidates, Gorsuch has been a strong party loyalist. (Like many Republican pols, he refers to the "Democrat," rather than the Democratic, Party.)
His background also includes a dose of pro-corporate, deregulatory libertarianism, as reflected in his close relationship with the billionaire Philip Anschutz, a client turned mentor. A sampling of authoritarianism can be seen in Gorsuch's service in George W. Bush's Justice Department, where he helped craft a proposal for the treatment of detainees at Guantánamo. (The Supreme Court later ruled it unconstitutional.) There's social conservatism, too, evident in his one book, a critique of death-with-dignity laws and physician-assisted suicide. "All human beings are intrinsically valuable," he wrote, "and the intentional taking of human life by private persons is always wrong." It's easy to read the book as a coded attack on abortion rights.
To the extent that Gorsuch said anything of substance at his hearing, he put himself across as a mainstream figure. He said that he had participated in some twenty-seven hundred cases on the appeals court, and had voted with the majority in ninety-nine per cent of them. This proves only that most cases are routine. (Even the Supreme Court issues unanimous rulings more than half the time.) The hard cases are the ones that matter, and it's reasonable to project how Gorsuch would vote in them. He would oppose abortion rights. (Trump promised to appoint a "pro-life" Justice.) His predilection for employers over employees is such that it yielded a circuit-court opinion of almost Gothic cruelty. When subzero temperatures caused a truck driver's trailer brakes to freeze, he pulled over to the side of the road. After waiting three hours for help to arrive, he began to lose feeling in his extremities, so he unhitched the cab from the trailer and drove to safety. His employer fired him for abandoning company property. The majority in the case called the dismissal unjustified, but Gorsuch said that the driver was in the wrong.
As a Justice, Gorsuch would embrace the deregulation of campaign finance symbolized by the Citizens United decision. (He argued in an opinion that judges should evaluate limits on political contributions using the same tough standards that they apply to racial discrimination.) His most famous Tenth Circuit decision had him taking a side in the culture wars. In Hobby Lobby Stores, Inc. v. Sebelius, he ruled that a multibillion-dollar corporation could withhold federally guaranteed rights to birth control from thousands of female employees because of the religious beliefs of the corporation's owners. (His position was upheld, 5–4, by the Supreme Court.) In an embarrassing coincidence, on the second day of Gorsuch's testimony, the Court unanimously rejected one of his holdings in the Tenth Circuit, ruling that it denied adequate educational opportunities to students with disabilities. Every sign suggests that Gorsuch would be at least as conservative a judicial activist as Samuel Alito.
It's also clear what Neil Gorsuch is not: Merrick Garland. Gorsuch's nomination is inextricable from its shameful political context. When Scalia died, more than eleven months remained in Barack Obama's Presidency, but Senate Republicans refused to give his nominee even a hearing. This departure from norms was all the more outrageous because the tactic was used to block a moderate; the Republicans denied Obama his constitutional right in order to trade a Justice who might have been less liberal than Stephen Breyer for one who might be as radical as Clarence Thomas. Such a turnabout seems especially disturbing given that the F.B.I. and other agencies are now investigating the very legitimacy of the Trump Presidency. Indeed, Chuck Schumer, the Democratic leader in the Senate, has called for a delay in the Gorsuch vote until there is some clarity about the Trump camp's ties to Russia. Last week, he also promised to lead a filibuster against Gorsuch's confirmation, but Republicans, in response, vowed to change the Senate rules to allow them to confirm the nominee by a simple majority.
The Supreme Court is, as political scientists like to say, a counter-majoritarian institution: the President and the members of Congress must answer to the voters; the Justices, who serve for life, answer only to the commands of the Constitution. But, in doing so, it's their duty to speak for those who lack political power. The Trump era has already meant trouble for these people—the poor, the sick, dissenters, immigrants—and Gorsuch, for all his intellectual distinction, has shown scant regard for their concerns. There's little reason to believe that he would as a Justice, either.
—Jeffrey Toobin
New Yorker, April 3, 2017
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April 3, 2017
Addendum.Should a President living under the shadow of an investigation for possible collusion with a foreign power...the high crime of treason... be permitted to make a lifetime appointment? Call your Senators. Text 228426, give them your zip code and be connected directly to your Senator. Or call 202-224-3121 and ask for your Senator.
You saw the effect of calls to stop Trumpcare. #StopTrumpSCOTUS.