In “The Tempting of America,” a masterful 1990 apologia following his bruising rejection by a Democrat-controlled U.S. Senate, the late Judge Robert Bork pithily captured the essential, counterfeit quality of Supreme Court confirmation hearings — including the past few weeks’ inquisition into the nomination of Judge Neil Gorsuch.
Bork described several long, confusing exchanges over judicial philosophy during his 1987 interrogation before the Senate Judiciary Committee, particularly with the late Sen. Arlen Specter, R-Penn.
Bork’s summation: “Because I was, of necessity, patient with [Sen. Specter], a lot of people not versed in constitutional law got the impression that this was a serious constitutional discussion.”
Many such wrong impressions emerge from every confirmation hearing. There were moments of meaningful give-and-take during Gorsuch’s three-day ordeal two weeks ago. But mainly, and typically, his hearing was tedious partisan theater, starring a panel of preening political peacocks a Supreme Court nominee “of necessity” has to show deference — helping them masquerade as thinkers.
Gorsuch played his part tolerably well, although that much humility in the face of hostile Democrat senators’ harrumphs, sneers and accusations couldn’t help seeming unnatural and cloying as the hours rolled by. The fulsome praise and folksy familiarity of the friendly Republicans didn’t help much.
Anyway, any “impression” that exploring ideas was central to the spectacle should be dispelled.
One theme frequently invoked was the dark specter of “litmus tests.” It’s a real, deepening concern. President Trump, who nominated Gorsuch, has recklessly guaranteed that his court picks will “be prolife” and will overturn Roe vs. Wade, oppose gun control, and more. Such a portrayal of judges promising predetermined rulings rather than attempting to approach each case impartially is ruinous to public confidence in the courts.
Litmus test promises were toxic even when they came, even more often and explicitly, from Democrats Hillary Clinton and Bernie Sanders.
Gorsuch reassuringly denied that Trump or anyone else had dared ask him for any such commitment. He extravagantly declared that if anyone had done so, he would have “walked out the door.” He insisted, as every judicial nominee insists, that core ethics forbid a judge from revealing any leaning, any clue, any hint as to how one might rule on an issue likely to come before the court.
But none of this prevented Democrats from demanding exactly those kinds of improper commitments on dozens of issues and cases, relentlessly for three days — or from sighing, rolling their eyes and waxing indignant whenever Gorsuch declined to submit to their litmus tests. Indeed, “evasiveness” is one of the main charges against him.
Regrettably, he can’t walk out the door this time.
Now and then, all the same, the proper business of the hearings came up — examining Gorsuch’s approach to judging and the quality of his work. “Under our Constitution,” he explained in his opening statement, “it’s for [elected legislative bodies], the people’s representatives, to make new laws … and for neutral and independent judges to apply the law in disputes. If judges were just secret legislators declaring not what the law is but what they would like it to be, the very idea of a government by the people … would be at risk.”
For originalist-textualist judges like Gorsuch, it is precisely because judges refrain from always doing what they think is right, and instead follow democratically made law wherever it leads, that self-government can be real.
It’s an exacting discipline — satisfying neither to “living constitution” liberals nor “natural law” conservatives. But that Gorsuch takes it seriously became clear through critics’ harangues over an unavoidably unappealing opinion of Gorsuch’s in the “frozen trucker” case.
A truck driver pulled off the highway in subzero weather when the brakes on his semitrailer froze up. He waited for hours, feared hypothermia, then defied orders and drove off, abandoning his cargo 15 minutes, as it turned out, before help arrived. He was fired.
Gorsuch’s appeals court ruled that federal law prohibited the trucker’s firing. The law says transport workers cannot be dismissed if they “refuse to operate” equipment for legitimate safety reasons.
Alone, Gorsuch dissented, saying the law did not cover this case. He wrote that the trucker had gone beyond “refusing to operate” and had instead operated his employer’s equipment in a way the employer forbade. Gorsuch sympathized with the driver, questioned the kindness and wisdom of the firing. But the law, he said, simply didn’t address the situation at hand.
He’s a stickler, for sure. Minnesota’s Sen. Al Franken, among other detractors, huffed and puffed heroically over this opinion. Franken declared with impressive-sounding authority that it ignored the “absurdity exception” to the “plain meaning rule.” He could not be interested in the fact that none of the parties to the case had raised that claim. Neither he nor other Democrats could be interested in the fact that the same strict adherence to “what the law is” has in other cases led Gorsuch to side with illegal immigrants, criminal defendants and many other “little guys.”
Anyway, it seems upholding the law, for Gorsuch, is upholding democracy itself. Laws, often imperfect, “are products of compromise,” he explained in his frozen trucker dissent, “the sort of compromise necessary to overcome the hurdles of [constitutional checks and balances]. And it is our obligation to enforce the terms of that compromise … not to use the law as a sort of springboard to combat all perceived evils … .”
Amid the temptations of Washington’s uncompromising extremisms, surely there’s room for this humble view of a judge’s duty to respect the practical realities of “government by the people.”
D.J. Tice is at Doug.Tice@startribune.com.