“Sometimes we in our discourse today … use labels as a way to not engage with other people, to treat and divide us and them. And as a judge, I don’t think that is a fair or appropriate or useful way to engage in discourse.” – Hon. Neil M. Gorsuch
Judge Neil Gorsuch is in the middle of his confirmation hearings to become the next associate justice of the Supreme Court. He will spend two total days being grilled by members of the Senate Judiciary Committee in a hearings process that will actually last the better part of the week.
Americans don’t need to watch all of Gorsuch’s testimony, though, to see just how political the hearing became.
Now, this is not just to pick on the Democrats. There were plenty of Republicans and conservatives who were calling Democrats “idiots” and “libtards” and “[fill in generic attack on liberals and Democrats]” on Twitter. It is Twitter. The point is, from the beginning of the hearing, it was clear how partisan the proceeding was going to be.
Republican senators were accused of mostly lobbing softball questions at Gorsuch, something Gorsuch even noted on the first question.
Senate Judiciary Committee Chairman Chuck Grassley asked Gorsuch if he would be willing to rule against the president who appointed him — rule against Trump — if the law conflicted with the president’s policies. Here is how Gorsuch responded:
“That’s a softball Mr. Chairman. I have no problem ruling against or for any party, other than on what the law and the facts in the particular case require.”
He would eventually add, “There’s no such thing as a Republican judge or a Democratic judge. We just have judges.”
Democrats, on the other hand, pressed Gorsuch to give an opinion on cases that are currently being litigated based on what other people with their own political motivations have said. Sen. Patrick Leahy (D-Vt.), for example, asked Gorsuch about a Republican congressman who Leahy says commented that the best thing for Trump’s “Muslim ban” (Leahy’s words) was to make sure Gorsuch was on the court before SCOTUS had a chance to weigh in on it.
Here is how Gorsuch responded:
“Senator, he has no idea how I’d rule in that case and, senator, I’m not going to say anything here that’s going to give anybody any idea how I’d rule in any case like that that could come before the Supreme Court or my court on the 10th Circuit. It would be grossly improper of a judge to do that. It would be a violation of the separation of powers and judicial independence if someone sitting at this table, in order to get confirmed, had to make promises or commitments about how they’d rule in a case that’s currently pending and likely to make its way to the Supreme Court.”
Gorsuch answered in a similar fashion to other attempts to get him to say how he would rule on a case that is either pending before the Supreme Court or otherwise currently going through the judicial system. But that didn’t stop Democratic senators from asking him these questions anyway.
U.S. Senator Al Franken (D-Minn.) asked Gorsuch to provide justification or explanation on comments White House Chief of Staff Reince Priebus and Trump adviser Steve Bannon — two people with political motivations — said about his nomination. Franken also asked him about his politics prior to becoming a judge, and to provide clarification about how he felt about Merrick Garland not getting a confirmation hearing.
Every time Gorsuch repeated what he had already said about taking a political position or talking about his personal views on a topic — specifically that he didn’t think it was appropriate for a judge — Franken said he knew Gorsuch has been asked to repeat that answer and for time purposes was going to move on to talk about the same thing, just with someone else — if not Reince Priebus then Steve Bannon or a Republican senator.
Franken pressed Gorsuch on Garland, but if Franken had looked to 2002 — before Gorsuch became a judge — he would have found that Gorsuch wrote an op-ed criticizing the Senate for delaying the nominations of John Roberts and Merrick Garland to the D.C. Circuit Court of Appeals. In that op-ed, Gorsuch wrote:
“Today, there are too many who are concerned less with promoting the best public servants and more with enforcing litmus tests and locating unknown “stealth candidates” who are perceived as likely to advance favored political causes once on the bench.
“Politicians and pressure groups on both sides declare that they will not support nominees unless they hew to their own partisan creeds. When a favored candidate is voted down for lack of sufficient political sympathy to those in control, grudges are held for years, and retaliation is guaranteed.”
Gorsuch even told Franken that there were problems he had with the confirmation process, though he didn’t go into specifics.
There were a few occasions where Gorsuch was asked whether or not he would stick up for the “little guy” or the “big guy” on the bench. Yet, Gorsuch argues that the impartiality of the judiciary requires a judge not to make political promises on how he or she would rule on any particular case.
It is not a judge’s role to be a friend to the “little guy” or the “big guy,” however that is defined in a case. Gorsuch pointed out on a few occasions that a judge is responsible for following the law as it is written. And the truth is, that may not always favor the “little guy.” But that is on lawmakers, not judges.
To have a judge promise to rule one way or another under oath is akin to asking them to take political positions on the bench — which does not protect an independent, impartial judiciary.
Gorsuch is currently a judge on the Tenth Circuit Court of Appeals. His confirmation was approved by unanimous voice vote on the Senate floor in 2006. Given how political the process has become to fill the late Scalia’s empty seat on the Supreme Court, it looks like Gorsuch’s confirmation this time may fall along party lines.
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