Gorsuch Hearings, Day 2: Impressive, But Two Red Flags Need Answers [Op-Ed]

The Senate confirmation hearings have begun for President Donald Trump’s first Supreme Court nominee, Judge Neil Gorsuch. Despite Gorsuch’s impeccable legal credentials, Democrats are certain to turn the proceedings into a spectacle as they try to paint him as a wild-eyed extremist.

But that’s not the part of the hearings that should bother us. No, we should be concerned that nobody has expressed much interest in using the opportunity to fully vet our nominee, and make absolutely sure we’re getting who we think we are.

To be clear, Gorsuch’s body of work is shows a greater commitment to originalism than that of, say, Chief Justice John Roberts, and based on my own review of the available background, I think he’s probably more likely than not to rule correctly on most cases. But consequences of this magnitude—shaping countless aspects of law and liberty for decades to come—cannot be left to any degree of chance.

We know what happens when Senate Republicans don’t give judicial nominees their due diligence—Justice Sandra Day O’Connor told President Reagan she was pro-life but turned out not to be, and Chief Justice John Roberts ruled as anything but the strict constructionist we were promised. Left-wing hysteria isn’t as reliable an indicator as we might hope, either—liberals threw the same invective at Justices Anthony Kennedy, John Paul Stevens, and David Souter, and look how they turned out.

Again, I fully acknowledge that we have a variety of positive indicators of Gorsuch’s judicial philosophy that we didn’t have for any of those justices. But we don’t have definitive answers for how he’d rule on every issue—including the critical matter of abortion—making confirmation endorsements premature.

To that end, before a confirmation vote is held, Gorsuch needs to answer whether he believes several key Supreme Court cases—including Roe v. Wade (abortion), Citizens United v. FEC (political speech regulation), NFIB v. Sebelius and King v. Burwell (Obamacare), Obergefell v. Hodges (same-sex marriage), and DC v. Heller (gun rights)—were rightly decided.

Unfortunately, Gorsuch gave a non-answer on Roe today, saying only that it should be considered “as precedent of the United States Supreme Court worthy of treatment as precedent like any other.” And while he didn’t rule out the possibility of overturning precedent, he gave it far too much respect, seemingly without acknowledgement that sometimes even longstanding, repeatedly-affirmed precedent can be wrong (elsewhere he’s written that precedent can only be overruled in “a very few cases”).

.@SenFeinstein asks Judge #Gorsuch: "Do you view Roe as having super-precedent?" #SCOTUS #SCOTUSnominee pic.twitter.com/pn9bEmbXvG

— CSPAN (@cspan) March 21, 2017

Gorsuch calls Roe v. Wade “a precedent of the United States Supreme Court” https://t.co/SsXz6sXI7V

— NBC News (@NBCNews) March 21, 2017

WATCH: Supreme Court pick Gorsuch says he would have walked out the door if Trump had asked him to overturn ruling that legalized abortion pic.twitter.com/cvg5zfQdhR

— Reuters Politics (@ReutersPolitics) March 21, 2017

He gave similar non-answers on other rulings:

Gorsuch soundly explains that Ginsburg Standard prevents him from opining whether Heller and Citizens United were rightly decided.

— Ed Whelan (@EdWhelanEPPC) March 21, 2017

Now, there is a school of thought that deems it improper to ask or answer such questions because it supposedly “politicizes” judges, but this is nonsense—what’s the harm in verifying a professed originalist’s qualifications by simply making sure he takes the originalist position on specific questions? In what other field would we not expect job interviewers to test an applicant’s resume against examples?

Indeed, the very justice Gorsuch has been nominated to replace, Antonin Scalia, understood this—in his majority opinion for the 2002 case Republican Party of Minnesota v. White, Scalia ruled against restrictions on judicial candidates voicing their views of legal issues:

A judge’s lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason. For one thing, it is virtually impossible to find a judge who does not have preconceptions about the law […] Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so. “Proof that a Justice’s mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.”

Finally, one other thing Gorsuch has said desperately needs clarification. After reports surfaced in February claiming he privately told Democrat Senator Richard Blumenthal he disliked Trump’s attacks on the shameless judicial activist who blocked his temporary travel ban, Republican Kelly Ayotte released the following statement:

[Judge Gorsuch has] emphasized the importance of an independent judiciary, and while he made clear that he was not referring to any specific case, he said that he finds any criticism of a judge’s integrity and independence disheartening and demoralizing.

Any criticism? Haven’t there been any judges in American history who lacked integrity or independence? What makes a judge less fallible than a president or a legislator? Why doesn’t public criticism of a judge’s misconduct hold the same positive value as criticizing the misconduct of any other public official?

These are lifetime appointments, and the idea that we should just have to hope for the best when entrusting anyone with such power and suck it up if we get stuck with false advertising is preposterous. It shouldn’t be controversial to apply three simple words to any judicial nominee: trust, but verify.

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