To cleanse the palate, enjoy the clip below of what’s easily the nerdiest moment in the history of SCOTUS confirmation hearings. Someday Cruz will land on the Court and these two will be playing D&D on the bench during oral arguments.
I’ll give you a bonus clip with a little something more substantive, though. Watch as Al Franken presses Gorsuch on whether his personal views of gay marriage have changed at all since 2004, when national opinion on that subject began to move. Gorsuch artfully dodges; today’s entire hearing, in fact, has been one long exercise in dodging politically charged questions, which is the smart play by Gorsuch but exasperating to the senators grilling him. (Franken doesn’t try to hide his frustration, immediately moving Gorsuch on to the next question.) Then, though, he asks him if the legality of gay marriage is “settled law.” “It’s absolutely settled law,” Gorsuch replies, with an emphasis that caught me off-guard. On the one hand, Dan McLaughlin is right:
Yeah, Gorsuch isn’t going to sit there and spook the Senate by riffing on cases he might overturn if he’s confirmed. The Court legalized gay marriage a few years ago, it hasn’t reversed that decision, ergo, gay marriage is “settled law” — for now. On the other hand, though, McLaughlin’s also right about this:
I think that’s why Gorsuch’s emphasis surprised me. You don’t typically refer to very recent precedents as “settled law,” as they haven’t yet produced a long line of jurisprudence and especially when the underlying issue is a hot-button topic on which the public is still broadly split. Roe v. Wade has a much better claim to being “settled law” than the Obergefell case does, and even Roe doesn’t really qualify as “settled” given its centrality in Supreme Court confirmation hearings in the post-Bork era. Is this a hint that Gorsuch would be inclined to uphold Obergefell in the unlikely event that the Court took up the question of gay marriage again anytime soon? I think it’s probably more of a pat answer in line with McLaughlin’s first take, but Gorsuch’s response got some attention on social media today. Worth noting, anyway.