“I don’t believe in litmus tests,” Neil Gorsuch declared at the beginning of his second day in the hotseat at his confirmation hearing before the Senate Judiciary Committee. Committee chair Sen. Chuck Grassley (R-IA) had asked whether Gorsuch had to make promises about specific outcomes to get his nomination to the Supreme Court. Not only did Gorsuch deny that any promises had been made, but also that any promises had been asked. “I think you would be reassured by the process that unfolded,” Gorsuch added:
— CBS News (@CBSNews) March 21, 2017
Gorsuch rejects the idea that he rules on an ideological basis at all. The judge’s task is to “approach the law as you find it,” regardless of personal opinions and ideology, Gorsuch insisted, adding “I’m not an algorithm”:
"I'm not an algorithm," Gorsuch says during confirmation hearing https://t.co/TFmRLRl6Os
— NBC News (@NBCNews) March 21, 2017
If the jurist’s task is to apply the law as one finds it, what about precedent? Grassley went directly to the key question that has been at the heart of Supreme Court nominations since at least Robert Bork. Does Gorsuch believe that Roe v Wade was correctly decided? Gorsuch firmly stated his view that the case is established precedent that must carry the same weight as all others, and affirmed the value of stare decisis — while not quite providing a definitive answer:
Gorsuch calls Roe v. Wade “a precedent of the United States Supreme Court” https://t.co/SsXz6sXI7V
— NBC News (@NBCNews) March 21, 2017
GORSUCH: Senator, again I would tell you that Roe v Wade, decided in 1973, is a precedent of the United States Supreme Court. It has been reaffirmed — the reliance interests considerations are important there — and all the other factors that go into analyzing precedent have to be considered. It is a precedent of the United States Supreme Court and was reaffirmed by Casey in 1992, and in several other cases. So a good judge will consider it as precedent of the United States Supreme Court worthy of treatment as precedent like any other.
If one wants to read between the lines, Gorsuch seems to be saying that overturning this precedent would take a very high bar, especially considering the concurring precedents that followed it, Casey being the most significant. It doesn’t mean that it can never be overturned, because the court has ruled against previous precedent in some compelling cases. Gorsuch’s mention of “reliance interests” is obviously intended to show his recognition that the court’s precedents have value in terms of legislation and enforcement, and that those precedents cannot be lightly overturned — but that doesn’t necessarily imprison the Supreme Court within a cage of an earlier panel, either. If it did, the court would not have been able to write the groundbreaking Brown v Board of Education ruling because of the prison of Plessy v Ferguson.
It’s a wise explanation, but it’s not likely to satisfy Democrats. It might make a few Republicans uncomfortable, but only briefly. Gorsuch might not believe in litmus tests, but a lot of politicians on both sides of the aisle certainly do.
Expect Democrats to go after Gorsuch on these points, as well as continue their attacks on him as a corporate shill who rules against the “little guy.” Ronald Cass, the dean emeritus of Boston University School of Law, rips Elizabeth Warren and other Democrats for this attack, reminding them of the proper role of a jurist as Gorsuch did earlier today:
Beyond having the wrong goal for judging, there’s a bit of flimflam in Warren’s attack. Of course, among the thousands of cases Gorsuch has voted on, he inevitably has decided for employers, and against them; for corporations, and against them; for insurance companies, and against them. But he hasn’t decided consistently or inappropriately for or against anyone, any group, or any class. …
The “wrong side” argument also mistakenly assumes that a rule that helps one group necessarily hurts another, big guys or little guys. That is completely wrong. For instance, adherence to fixed, clear rules on contracts helps rich investors such as Warren Buffett — and also helps poor investors whose life savings go into the same sort of funds.
Constant, unsubstantiated and ill-considered assertions of judicial misbehavior have become part of the standard attack on nominees. But the claim that Gorsuch has sided with the wrong sort of litigant is so patently misguided, so obviously wrong and so at odds with the essence of the rule of law, that even aspiring political stars should consider taking it out of the arsenal.
Hopefully, Dean Cass won’t be holding his breath waiting for Democrats to take it out of their arsenal this week.