On Monday, the Senate Judiciary Committee will begin confirmation hearings for Judge Neil Gorsuch, President Trump’s nominee for the Supreme Court seat that has been vacant since the death more than a year ago of Justice Antonin Scalia.
The cynical conventional wisdom is that Republicans will lob softballs at the nominee, Democrats will try to portray his decisions on the federal appeals court in Denver as hostile to “the little guy” and the judge himself will say as little as possible about controversial legal questions.
We’d like to suggest a different approach: Senators should engage the nominee in a serious discussion of his views about the Constitution, the role of precedent and how the court should adapt general principles to changing social and scientific circumstances. And Gorsuch should respond in kind by speaking as frankly as he can, demurring only about specific cases that are likely to come before him.
We recognize that the hearings inevitably take place in a partisan context. Democrats are justifiably angry that the Republican majority never allowed hearings or a vote on Merrick Garland, President Obama’s eminently qualified nominee to replace Scalia. One consequence of that power play is that Democratic senators are under extreme pressure from their liberal base to oppose Gorsuch no matter what. Beyond that, Democrats have legitimate concerns about how his appointment could affect progressive causes, from gay and transgender rights to affirmative action and reproductive rights.
Democrats are free to remind their Republican colleagues — and Gorsuch — of the injustice done to Obama and Garland. They also have every right to question the nominee about his rulings on the U.S. 10th Circuit Court of Appeals and his previous work, such as the role he played as a Justice Department lawyer in defending the George W. Bush administration’s policies on interrogating and detaining suspected terrorists.
But the main focus should be how Gorsuch would approach the role of a Supreme Court justice. Gorsuch is only 49; if confirmed, he could sit on the court for decades and outlast several presidents and Congresses. In particular, they should explore how Gorsuch would interpret the Constitution and, to a lesser extent, acts of Congress.
Like Scalia, Gorsuch has been described as an “originalist,” someone who interprets the Constitution according to the meaning its provisions had at the time they were adopted. In a speech at Case Western Reserve University Law School last year, Gorsuch said judges should strive to “apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be — not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.”
This formula is much less straightforward than it seems. For one thing, “text” and “history” can be at odds because language can have different connotations at different times.
For example, to Americans in the 19th century, the “equal protection of the laws” guaranteed by the 14th Amendment might seem to protect only racial equality; in the 20th century it seemed obvious to many Americans that it also prohibited some forms of sexual discrimination. Does Gorsuch object to that updated interpretation? Does he believe that a constitutional provision must be viewed through the eyes of the generation in which it was adopted and can't be interpreted to deal with situations its authors never could have imagined, such as cellphone GPS signals being used to track suspects without a warrant? The U.S. Constitution has never been that sort of rigid document.
Scalia, for whom Gorsuch has expressed great admiration, was zealous in defending relatively specific rights mentioned in the Constitution, including freedom of speech and protection from unreasonable searches and seizures — even in circumstances that the Constitution’s framers couldn’t have anticipated, such as the sale of video games or the use by police of GPS technology. But Scalia’s version of originalism led to him dissent stridently from rulings recognizing rights, such as abortion or marriage equality for gays and lesbians, that his colleagues rightly read into more general language in the Constitution about “liberty” and “equal protection of the laws.”
Those decisions were a natural outgrowth of earlier rulings in which the court secured other rights that the Constitution didn’t explicitly guarantee, such as a right to marry someone of another race (or the right to marry at all) or the right to use contraceptives in the privacy of one’s bedroom. An America in which those decisions had come out the other way would not be an America in which most of us would want to live.
Senators should ask Gorsuch whether he shares Scalia’s disdain for the court’s decisions on abortion and same-sex marriage and, if so, whether he would nevertheless accord those decisions respect as precedents of the court. This wouldn’t be breaking new ground. At his confirmation hearing, Chief Justice John G. Roberts Jr. acknowledged under questioning by the late Sen. Arlen Specter that Roe vs. Wade was “settled as a precedent of the court, entitled to respect under principles of stare decisis.” That concession didn’t mean that Roberts would never vote to overrule Roe, but it made it less likely.
It’s entirely possible that Gorsuch would not have joined the decisions legalizing abortion or same-sex marriage but also wouldn’t agitate to overturn those rulings if he joined the court. According to the New York Times, Sen. Susan Collins (R-Maine) said Gorsuch told her that he didn’t believe a long-established precedent should be overruled simply because five current justices think it was wrongly decided. That’s a possibility the committee should look into, but as part of a broader inquiry into Gorsuch’s view of the importance of precedent and predictability in the law. (Some precedents, after all, should be overturned — witness Plessy vs. Ferguson, the 1896 ruling that approved segregation in public facilities.)
But even if Gorsuch wouldn’t upset existing precedents, he could make it harder for the court to adapt to future changes in American society if he took too constrained an “originalist” approach going forward. That’s why it’s important that senators engage him in a dialogue about his view of the court’s role that goes beyond hot-button issues such as abortion, guns and gay rights.
Gorsuch is obviously an accomplished jurist. He has been rated “well qualified” by the American Bar Assn. (as was Garland, who never was permitted to appear before the Judiciary Committee). Unlike some Trump appointees, he is neither a crony nor someone whose professional credentials can be questioned. But the Senate has a right to look beyond a sterling résumé to inquire about the philosophy that will help shape the court for decades to come.
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