The Gorsuch Confirmation – Day Three

March 22, 2017
Guest Post

by Carolyn Shapiro, Associate Professor of Law and Co-Director of the Institute on the Supreme Court of the United States, IIT Chicago-Kent College of Law

The two days of Q&A between senators and Judge Neil Gorsuch has been marked by his unwillingness to answer some of the most basic questions about his views of the law. Judge Gorsuch and Sen. Blumenthal (D-CT), for example, had a lengthy tug-of-war about whether Brown v. Board of Education was correctly decided. This should not be a hard question, but Gorsuch resisted giving a straight answer. Of course, Gorsuch does think that Brown was rightly decided, and he eventually got around to saying so, albeit circuitously. Gorsuch resisted answering this softball because once he gave a straight answer about Brown, it was harder not to answer about other, more controversial cases like Griswold (right to birth control) or Roe v. Wade.

Admitting to a belief that a case was wrongly decided does not require committing to vote to overrule (and I do not think that any nominee should make promises about how they will vote) because there are significant stare decisis concerns, as Gorsuch repeatedly and correctly emphasized. But a more candid discussion even about Brown would allow for some insight into how Gorsuch thinks about how to interpret the Constitution’s protections for rights that may not have been recognized by, or relevant to, the Framers. Indeed, at least in the portions of the hearing that I heard, no senator pushed him to fully explain his claim that Brown was “consistent with the original meaning” of the 14th Amendment, which might have shed some light on his judicial philosophy and methodology. (Segregated schools were widespread and uncontroversial at the time the Amendment was enacted.)

Instead of such discussions, Gorsuch repeatedly insisted that (paraphrasing) “there are no Republican or Democratic judges; there are only judges,” that judges’ personal views are irrelevant, etc., etc., This is silly. As Sen. Franken (D-MN) said, if that is so, why is Merrick Garland not on the Supreme Court? We all know that there are important differences between the ways different judges approach the law because the resolution of hard questions often requires the exercise of judgment. It may be that, as Gorsuch said repeatedly, most cases in our judicial system are unanimous. But the hard and contentious cases that get to the Supreme Court generally are not. That is why it matters who is appointed and who does the appointing. We all know this.

The mask slipped a bit in one of the last exchanges of the day, between Sen. Hirono (D-HI) and Judge Gorsuch. The senator pressed Gorsuch about his views on Shelby County v. Holder, which struck down the preclearance requirement of Section 5 of the Voting Rights Act (VRA). Although he first refused to answer (and given how recent the case is, he had more justification for doing so than with some other, hoarier cases), he eventually defended the holding, or at least minimized its impact. (Caveat: as with everything in this post, I am basing my comments on my recollection of the exchange.) First, Gorsuch argued that there are still “remedial mechanisms” available to “those concerned” about voting rights – notably the Equal Protection Clause and Section 2 of the VRA. But the VRA is not about “those concerned” with some kind of private right and those whom “a remedial mechanism” can make whole. It is about protecting the essential democratic right to vote. Second, this answer echoed a signature move of the Roberts court: hollow out the law, but pretend otherwise by pointing to remaining options that are unwieldy at best. (In the case of the VRA, the mechanisms Gorsuch mentioned will often be successful only after the right to vote has been abridged, and constitutional litigation requires a finding of intentional discrimination.) And finally, Gorsuch did not respond to one of Sen. Hirono’s main complaints: the Court’s willingness to second-guess extensive fact-finding by Congress itself about the need to re-enact the VRA with Section 5 intact.

It is not surprising that Gorsuch revealed little, but it is unfortunate that the proceedings reiterated the clearly inaccurate view that Supreme Court justices are no more than neutral umpires. They are not, and we all know it. If only we could talk about it.