by Adam Winkler, Professor of Law, UCLA School of Law
Tuesday’s confirmation hearing on the nomination of Judge Neil Gorsuch to the Supreme Court went exactly according to script. Against a background of Republican praise and Democratic skepticism, Gorsuch showed himself to be smart and articulate without saying much of substance on any of the major issues of the day. The nominee parried nearly every question by invoking the law’s first principles: A judge should apply the law, not make it. No man, not even the President, is above the law. Justice requires adherence to precedent, open-minded judges, and equal treatment of rich and poor alike. Anyone seeking insight on how Gorsuch would rule in particular controversies could only come away disappointed from the latest instance of the confirmation process’s “kabuki theatre.”
Gorsuch is nothing if not polished. Handsome, charming and easy with a smile, Gorsuch joked with committee members on both sides of the aisle. He showed the calm intelligence and detailed knowledge of doctrine for which he is known. He came prepared, and when asked about his tendency to rule for big business and against the “little guy,” he offered a list of cases in which he ruled in favor of the latter. Gorsuch even threw in some one-liners, insisting in response to a question about his independence that a judge wields “a gavel, not a rubber stamp.” But, by the end of the day, the picture of what Gorsuch would be like as a justice had not come into any sharper focus.
Yet maybe that is about all we should expect from Supreme Court confirmation hearings. Most of the senators asked questions that seemed poorly designed to draw out a thoughtful and revealing response from the nominee. The day began with Sen. Grassley asking Gorsuch if he could rule against Trump, prompting the nominee to call it a “softball.” For a skilled lawyer like Gorsuch, they were just about all softballs. Even when senators had some difficult questions, they often seemed more interested in expressing their disagreement with Gorsuch’s rulings than soliciting further explanation from him. Others were content to refer to the nominee’s strong bladder and his favorite fishing stream. Meanwhile, the nominee only revealed what he wanted and claimed over and over again his adherence, over all, to those first principles of the law.