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?
Kennedy: You’ve never been to Russia, have you? I meant to ask that.
Strike that, strike that question.
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: https://commons.wikimedia.org/wiki/File:Neil_Gorsuch_and_Donald_Trump.jpg