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Don’t Blame the Democrats for the Gorsuch Filibuster, Blame Gorsuch

A filibuster against Gorsuch was not foreordained. But his testimony was so evasive that he provoked Democrats into a filibuster.

March 29, 2017

Quick ques­tion: what do Supreme Court nomin­a­tions hear­ings and a 400-year-old Japan­ese theat­rical genre have in common? Answer: Not much, except pundits like to mention them together.

“The confirm­a­tion process has become an elab­or­ate kabuki play in which the senat­ors try to get the nominee to tell them how he’s going to vote so that they can oppose him even though he’s qual­i­fied,” opined New York Post colum­nist Seth Lipsky, dismiss­ing the last week’s Senate Judi­ciary commit­tee hear­ings on Neil Gorsuch’s Supreme Court nomin­a­tion. Lipsky dismissed the hear­ings as all style and no substance, “a waste of time.”  

But this comment­ary, and others like it, not only unfairly maligns a vener­able Japan­ese art form; it misses the import and impact of the hear­ings.

In fact, the hear­ings did matter. When Sen. Minor­ity Leader Chuck Schu­mer (N.Y.) announced last Thursday that the Demo­crats would fili­buster Gorsuch, he was not follow­ing a script that had been writ­ten weeks before­hand. Accord­ing to aides to four differ­ent Senat­ors famil­iar with the party’s think­ing, Demo­crats basic­ally were split into three groups about fili­bus­ter­ing Gorsuch before he test­i­fied.

Remem­ber that fili­bus­ter­ing Gorsuch is not without a price. Senate Major­ity Leader Mitch McCon­nell has vowed to change Senate rules to allow Supreme Court justices to be approved with a simple major­ity vote, instead of the 60 needed to avoid a fili­buster. Before the Gorsuch hear­ings began, Demo­crats were divided into three groups. A few Demo­crats, such as Sens. Joe Manchin (W. Va.) and Heidi Heitkamp (ND), both of whom face tough re-elec­tion fights in 2018, were inclined to perhaps support Gorsuch. Another faction opposed Gorsuch, but were reluct­ant to use the fili­buster and risk a show­down with McCon­nell. And the third group believed using the fili­buster – even if it provoked a reac­tion from McCon­nell—was the proper course, espe­cially given the Repub­lican block­ade of Obama’s Supreme Court nomin­a­tion of Merrick Garland.

Many Demo­crats were wait­ing for the hear­ing before making a decision. They needed to see Gorsuch in action. But after watch­ing 20 hours of testi­mony from the nominee, they were convinced to support a fili­buster. As of this writ­ing, only Manchin and Heitkamp have said they will not join the fili­buster. (Tellingly, neither has said whether they will ulti­mately vote for Gorsuch.)  

There were four turn­ing points in Gorsuch’s testi­mony, accord­ing to Senate staffers, one of which involved the thorny ques­tion of whether to use wet or dry flies when fish­ing.

1.Brown vs Board of Educa­tion and Gris­wold v. Connecti­cut:

More than eight hours into the first day of ques­tion­ing, Sen. Richard Blumenthal (D-Conn.) got his first chance to ask ques­tions. When Blumenthal asked if he agreed with the decision in Brown v. Board of Educa­tion, Gorsuch took his time, even­tu­ally wind­ing around to some­thing like approval. Brown, he opined, “correc­ted an erro­neous decision” and was “a correct applic­a­tion of the law of preced­ent.” It was a proper origin­al­ist decision he told the panel.

To many in the room, his answer was a cold-blooded eval­u­ation of a land­mark decision, all about origin­al­ism and preced­ent and noth­ing about civil rights and educa­tion. Gorsuch missed an easy oppor­tun­ity to send a no-cost signal to Demo­crats about equal­ity and justice.

That miss was followed by another frus­trat­ing exchange, this one about Gris­wold v. Connecti­cut, the 1965 ruling that allowed marital couples to use contra­cep­tion. When asked if he agreed with the decision, Gorsuch simply re-stated what the ruling: “So, Gris­wold, Senator, as you know, held that the Four­teenth Amend­ment Due Process Liberty Clause provided a—a right to married couples to the use of contra­cept­ive devices in the privacy of their own home. And then Eisen­stadt [v. Baird] exten­ded that to single persons.” Then he hand­ily informed the panel: “those are preced­ents of the United States Supreme Court.”

Blumenthal soun­ded a little perplexed. These were soft­ball ques­tions, which previ­ous nomin­ees had handled briskly. “I want to tell you what Chief Justice Roberts said when he was asked the same ques­tion about Gris­wold. He said, quote, ‘I agree with the Gris­wold court’s conclu­sion that marital privacy extends to contra­cep­tion and avail­ab­il­ity of that,’” the Connecti­cut senator noted. “When we resume ques­tion­ing, that perhaps you can give me some­what more direct and unequi­vocal answers in the same way that Roberts, Alito—Justices Roberts and Alito and Kennedy did to the same ques­tions,” he hoped. (To watch the exchange on video, go here. Note: the video has been edited so only the relev­ant ques­tion­ing is shown. This clip lasts 4:20.)

Gorsuch would adhere to this formula through­out the hear­ing. When asked about a case, he would explain the ruling and then help­fully tell the panel that it was preced­ent. In part, this stance was stra­tegic. As he explained early in the hear­ing: “If I were to start telling you which are my favor­ite preced­ents or which are my least favor­ite preced­ents or if I view a preced­ent in that fash­ion, I would be tipping my hand and suggest­ing to litig­ants that I’ve already made up my mind about their cases. That’s not a fair judge.” 

Gorsuch succeeded in his goal of being the most opaque Supreme Court nominee at least since Robert Bork in 1987. Yet, when Gorsuch returned for Day Two, Gorsuch and his advisers had likely concluded overnight that he had been a little too coy about Brown. So Gorsuch added the help­ful insight that the case had been “seminal,” the same adject­ive he used for Gideon v. Wain­wright, the ruling that held indi­gent defend­ants have a right to coun­sel.

Sen. Dianne Fein­stein (D-Cal.) summed-up the Demo­crats’ percep­tion. Gorsuch had been “very much able to avoid any specificity like no one I have ever seen before. And maybe that’s a virtue,” she said. But the real­ity was that Gorsuch offered waver­ing Demo­crats no reason to vote for him, or at the very least, to decline to support a fili­buster, even if they even­tu­ally would vote against him.

2.    Luke P.

Day Two dawned with a surprise. On Wednes­day, about 40 minutes into ques­tion­ing, the Supreme Court handed down a unan­im­ous decision reject­ing a Gorsuch ruling on the educa­tion of chil­dren with disab­il­it­ies. Demo­cratic staffers were flab­ber­gas­ted that the Supreme Court, which decides when it issues decisions, did so in the middle of the hear­ing. So an almost decade-old decision took center stage.

Luke P. was a 14-year-old autistic boy in Color­ado whose parents with­drew him from his local public school and placed him in a private resid­en­tial program. His parents sought reim­burse­ment for the cost of the private school. By the time Luke P.’s case reached the 10th Circuit (and Judge Gorsuch), a lower court and two admin­is­trat­ive courts had agreed that the school district should pay. They concluded that the school district had failed to provide Luke P. with a free and appro­pri­ate educa­tion and there­fore the parents were entitled to the money. The ques­tion facing Gorsuch was what, exactly, is an “appro­pri­ate educa­tion”? He wrote an opin­ion stat­ing that the educa­tion provided had to be “merely… ‘more than de minim­is’.” If a school offered that, then no reim­burse­ment was neces­sary.

But the Supreme Court unan­im­ously swat­ted down that stand­ard. The appel­late panel was rebuked for meting out “check­list” justice. Chief Justice John Roberts wrote, “When all is said and done, a student offered an educa­tional program provid­ing “merely more than de minimis” progress from year to year can hardly be said to have been offered an educa­tion at all. For chil­dren with disab­il­it­ies, receiv­ing instruc­tion that aims so low would be tantamount to “sitting idly . . . await­ing the time when they were old enough to ‘drop out.’”

Confron­ted with the Supreme Court reversal, Gorsuch offered basic defenses for his ruling: he was just follow­ing preced­ent and his decision was for a unan­im­ous three-judge panel that also included a Demo­cratic appointee.

Judi­ciary Commit­tee Demo­crats were having none of it. First, they noted Gorsuch made substant­ive changes to the stand­ard for reim­burse­ment. Sen. Dick Durbin. (D-Ill.) poin­ted out that Gorsuch was the one who had added “merely” to the “more than de minimis” stand­ard.

Then, Senator Amy Klobuchar (D-MN) pulled the case that Gorsuch said was preced­ent for his ruling, Urban v. Jeffer­son County School District. Klobuchar, a former member of the Univer­sity of Chicago Law Review, said the case wasn’t preced­ent because, as the opin­ion notes, “[W]e need not reach the issue of whether compens­at­ory services are an avail­able remedy…” Klobuchar noted, “It says we don’t reach the issue. So for me…it’s just dicta in the case, it’s not a hold­ing. And so to me, you actu­ally were the first in this case that you wrote to come up with this stand­ard…” (Watch video here and here.)

Gorsuch didn’t engage. He remained stead­fast in saying that he was just follow­ing preced­ent. And he clung to his other defense that his opin­ion was joined by the two other judges.

These exchanges confirmed Demo­crats’ grow­ing impres­sion of Gorsuch. This was more than a nominee just being evas­ive. He was slip­pery.

3.    Campaign Finance

One of the most sustained exchanges came from Sen. Shel­don White­house (D-RI) about campaign finance. A long­time advoc­ate of campaign reform, who has just published book on the subject, White­house avoided asking “do-you-agree-with-the- ruling” ques­tions. Instead, he opted to quiz Gorsuch about the outside spend­ing and dark money that has been deployed to support his nomin­a­tion. The Color­ado jurist replied that he had noth­ing to do with these campaigns and could not speak for them.

White­house wanted to know some­thing simple: Is there a public interest in know­ing the source of fund­ing for polit­ical campaigns? Gorsuch gave a typical on-the-one-hand, on-the-other-hand response. “The Supreme Court has valid­ated the propos­i­tion that disclos­ure serves import­ant func­tions in a demo­cracy. At the same time, the Supreme Court’s also acknow­ledged that those disclos­ure func­tions can some­times them­selves have unin­ten­ded consequences as with the NAACP case which I know you’re famil­iar with where disclos­ure [can be] a weapon to try and silence people.” (Watch video here.)

Gorsuch stuck to this on-the-one-hand, on-the-other approach through­out, includ­ing even when White­house asked Gorsuch about what might be the motives of those spend­ing $10 million to secure his confirm­a­tion. (Watch video here and here.)

White­house: … The dark money group that is spend­ing money on your [confirm­a­tion] spent at least $7 million against [Merrick Garland] getting a hear­ing and a confirm­a­tion here, and indeed produced that result by spend­ing that money. And then, now, we have $10 million going the other way; that’s a $17 million delta and for the life of me, I’m trying to figure out what they see in you that makes that $17 million delta worth their spend­ing. Do you have any answer to that?

Gorsuch: You’d have to ask them.

White­house: I can’t because I don’t know who they are….(Watch video here.)

The entire exchange left Demo­crats cold. While Gorsuch didn’t have to express his views on campaign finance, by dancing so much, the nominee left the distinct impres­sion that he believes disclos­ure “can some­times … have unin­ten­ded consequences.”

4.    Rodeos, Fly Fish­ing, Pet Goats, and The Hitch­hiker’s Guide to the Galaxy

If Repub­lic­ans thought they could human­ize Gorsuch by asking personal ques­tions,  they over­played their hand. Personal ques­tions are stand­ard oper­at­ing proced­ure to support a nominee. Demo­crats do it when it’s their judge. But to many Demo­crats, it not only went on way too long, it verged on the obsequious. In the wake of the Repub­lic­ans’  attacks and mistreat­ment of Merrick Garland, Demo­crats were in no mood for the GOP’s fawn­ing regard for Gorsuch. They felt insul­ted.

After a genu­inely thought­ful discus­sion about euthanasia, Sen. John Kennedy (R-Ala.) suddenly switched gears and asked the man who is likely to fill Antonin Scali­a’s Supreme Court seat about…fly fish­ing and then, in a poor stab at contem­por­ary humor, his over­seas travels.

Kennedy: Do you prefer wet flies or dry?

Gorsuch: Dry….

Kennedy: You’ve never been to Russia, have you? I meant to ask that.

Strike that, strike that ques­tion.

Gorsuch: I’ve never been to Russia. (Video here and here.)


Ever since Robert Bork, Supreme Court nomin­ees have had to walk a fine line. If they say too much, they can appear rigidly ideo­lo­gical and risk losing votes. If they say too little, they can appear less than forth­right. Gorsuch took this approach to new extremes. And by trying to be too clever by half, he walked into a fili­buster. 



Image via Wiki­me­dia Commons:­me­