by Jim Brosnahan, Senior Trial Counsel, Morrison & Foerster, and Author of the Upcoming Book: Trial Lawyer
The Gorsuch confirmation hearings were, even to a casual observer, a catastrophic insult to the proper selection of a justice. Even by the standard that such hearings are political and not legal events, it highlighted the current failure of the practice of the political arts. Any selection of a Supreme Court Justice with lifetime tenure is a politically sacred happening. At this time, the reckless, almost daily, unconstitutional bursts of illegal energy emanating from the White House and supported by an attorney general who missed the Constitutional Law class will present a series of clear and present fundamental legal challenges to the Supreme Court. Nothing in what now-Justice Gorsuch testified to or what the ten million dollars in TV ads supporting him said gave the slightest assurance he will uphold the Constitution against this president. In all likelihood, that set of potential constitutional issues involving executive excess is the number one potential legal challenge that will face the Court in the next year or two.
FALSE STANDARDS USED BY SENATORS
1. “He is qualified”
Both parties have used several false standards over the years. They were used here. One goes like this: He is qualified…. End of the analysis. First thing missing in that oversimplified standard is, qualified to do what? How much will the future rulings of Justice Gorsuch hurt the constituents of the voting senators? Who is behind his nomination and what is their motivation? When Sen. Franken (D-Minn.) asked Justice Gorsuch who was putting up the ten million dollars to fund his confirmation ad campaign, he responded that if the senator did not like the disclosure laws, he should pass a bill. Talking to a minority senator with little ability to pass such a bill was not just arrogant; it was another example of the judge favoring the rich. Who did put up ten million dollars? Why did they do that? What do they think they are getting? Who are they? The Supreme Court has held that a judge receiving three million dollars cannot sit on a case benefitting the contributor. No one considering a person for a powerful, important job, with life tenure simply uses a standard of “he is qualified.” The number of judges and lawyers who are presently qualified to be a justice might be upwards of 10, 20, 30,000 or higher. Using this vague standard to justify a vote denies the vitality of the term in Article II section two of the Constitution: “with the Advice and Consent of the Senate”.
2. “He is in the mainstream”
The second false standard imagines an identifiable mainstream center in the development of the on rushing growth of law. If there is such a halcyon flow, Justice Gorsuch is not in it. But his supporters say he was in the majority in 97 percent of his decisions. They ignore several hundred concurring opinions that join the majority and state additional or different, often more conservative grounds then the majority. How can a senator know if a judge is in the mainstream when he has been tutored by beltway habitués to give out as little information as possible?
3. “He loves the law” and its cousin “he will follow the law”
Which law is that? Ask any judge, as I have frequently done, how often he or she encounters law that is not clear. The most frequent answer is “often.” some respond, “daily”. Last minute legislative compromises, linguistic vagueness, varied word meanings and constitutional terms like “cruel and unusual punishment” all present any judge with gaps that must be interpreted and filled.
THE RIGHT STANDARDS
So what should be the standards for Supreme Court nominees? Legal talent? Sure. Real court room experience? Yes!
My three core standards are: First, being in the habit of applying reasonable doubt about the proper outcome of any matter as the case is first addressed. That would assure the justice had intellectual modesty and respect both for the law and its often-blinding complexity. It would reduce the impact of troubling ideologies. Second, a talent and love for both induction and deduction. This standard would require not just a love of legal rules and deduction but a love of facts and induction which often dictate the right result. Thirdly, an empathetic sense of the effect of a ruling on persons negatively impacted by it. President Trump, who nominated Justice Gorsuch, recently attacked what he called “false empathy.” Justice Gorsuch, faced with Thomson R2-J School District v. Luke P., a case under the Individuals with Disabilities Education Act, held the standard for public schools in supplying an education to an autistic child was merely more than de minimis. The Supreme Court unanimously reversed that standard on March 22 of this year. The Court held the correct standard was for a school to offer schooling reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.
Justice Gorsuch struck out on all three of my criteria. First, he had insufficient doubt about the outcome preferring that principle of strict construction to deny a benefit to an autistic child under the statute. Strict construction honestly explained to the public is often a tool to limit Americans’ rights. Second, he saw deduction as his method rather than induction. He could have used the fulsome factual record, as the Supreme Court did, to reach the right result. That Court understood the facts of the case and upheld the rights of the child. Thirdly, he gave no sign of considering the effect on the persons affected by his decision. Unlike Congress who passed the statute, he was unmoved at any level by the vision of handicapped children struggling to get an education. We see in the disabilities case the law he loves. We see what he will do with his qualifications. This case shows him to be outside the mainstream of current law. He explains his legal philosophy as involving looking backward.
JUSTICE GORSUCH IS A RATIONAL POSITIVIST
It may sound rude to hurl such a name at a nominee. To me a positivist is a judge who sees the law as a series of commands from the sovereign. A positivist sees the duty of the citizens as obedience to these commands. They are not comfortable with judges filling gaps; in fact they are most comfortable in denying the existence of gaps. If this sounds like a stunted ancient air, it is. The American philosopher John Dewey long ago put legal positivism to rest in favor of the universally used judicial philosophy: how does this law work. We see what Justice Gorsuch’s philosophy can do to an autistic child trying to get an education. A positivist can have an aloof chilling detachment from the travails of ordinary citizens.
Justice Gorsuch, like other positivists, looks upward for his legal inspiration. He identifies with those in command, powerful corporations and the wealthy. He is deeply distrustful of personal choice, not just as it applies to abortion, but in a much deeper sense when personal choice applies to people generally. It cannot be expected that he will adopt Justice Kennedy’s doctrine of liberty as including the development of personality. He will limit regulatory agencies and not ask who will be hurt by such decisions. When it serves his purposes he will claim textualism as his animating principle. This term “textualism” is flummoxing because all judges look at the text of a statute or constitutional provision. He will, on occasion, quoting the now generally discredited doctrine of originalism, divine what the founders or earlier legal thinkers thought and apply antique perceptions when we know that this is an artificiality that clouds a deeper legal philosophy and is unhelpful in 2017. I hope that each of my points will be proven wrong. We will all see together what the Senate has done.