Well, that was a waste of four days.
To put the hearings for Neil Gorsuch’s nomination to the Supreme Court in perspective, consider a run-of-the-mill job interview, say to be a cashier. The manager sits you down and asks, “If you got this job, and two customers came to the cash register at the same time, one with a screaming baby and the other with an elderly parent in a wheelchair, how would you handle the situation?”
Reasonable people may differ in how they’d answer that question. But most would agree that one thing you absolutely shouldn’t say if you want to get hired is, “I can’t tell you – that wouldn’t be fair to the customers who may come before me in the future.” Or, even worse: “Let me tell you all about the history of parents with babies and people in wheelchairs.”
Nevertheless, those were the two answers we heard over and over again from Gorsuch this week. When questioned about all sorts of important legal issues – the kinds of issues that go to the heart of the job for which he’s being considered – Gorsuch repeatedly avoided saying anything of substance.
For instance, when asked about Roe v. Wade, Gorsuch said it was “the law of the land” and “a precedent of the United States Supreme Court.” Some supporters of abortion rights have tried to find a glimmer of hope in this acknowledgment, but it’s nothing but a truism – the equivalent of someone asking how you like the shirt you just bought, and you replying, “It is a shirt.” What we really want to know is whether, as a justice, Gorsuch would want to overrule that precedent.
He followed the same pattern when asked about the 2014 case that gutted the Voting Rights Act. He said the case “is a precedent of the United States Supreme Court.
“It’s a recent one, it’s a controversial one. I understand that,” he added.
In other words, “It is a shirt.”
Over and over this went, with nothing to show for it. Gorsuch’s thoughts on the rights of gay people? His views on religion and its role in exempting people from general laws? His stance on presidential power, race discrimination, the employer-employee relationship, agency regulation, the environment? “Those are all shirts.” Democrats tried to crack him and get him to say something of substance, but they couldn’t figure out how to do so. And none of them went so far as to make a spectacle of his obstruction – no one called him out for being unhelpful or giving answers that said nothing.
Of course, this isn’t new or unexpected. This is straight out of the playbook for Supreme Court nominations: Say nothing so as to appear like you are not prejudging any case that may come before you. Gorsuch explained as such. “If I were to start telling you which are my favorite precedents or which are my least favorite precedents, or view it in that fashion, I would be tipping my hand and suggesting to litigants I already made up my mind about their cases,” he said. “That’s not a fair judge.”
But in following this playbook, Gorsuch gave us no further insights into why he would be a good Supreme Court justice. After four days, all we know is what we already knew: that he is a widely respected judge from an appellate court, and one who is lauded by the extreme right because of the results he reaches and his backwards-looking way of interpreting the Constitution. After almost a week of hearings, with most of the time devoted to him answering questions, that’s all we’ve got.
So now it falls to the Democrats to decide what to do next. Several, including Democratic Senate leader Chuck Schumer, have said they’ll filibuster Gorsuch’s nomination once it goes to the full body. Schumer’s reasoning in part relates to the lack of useful information produced at the hearings; he said Gorsuch hasn’t given him enough reason to believe that as a justice he will independent enough.
The big question over the next few weeks is whether enough Democrats will agree with Schumer. (Mitch McConnell says he wants a vote before Easter.) It takes 60 senators to defeat a filibuster. The Republicans, with 52 in the Senate, would need eight Democrats to cross the aisle.
Chances are good that happens. There are ten Democrats up for reelection in 2018 from states that Trump won. They are going to be loath to oppose Trump’s nominee with a filibuster. Plus, other Democrats are going to fear that a successful filibuster would be met with the “nuclear option,” in which the Republicans get rid of the filibuster entirely. Republicans can do that with a bare majority vote, and Democrats fear that if they do so, that will pave the way for a future Justice Ted Cruz or Mike Lee. In this environment, with those threats looming, it’s hard to see the Democrats coalescing to stand firm against Gorsuch.
There’s no doubt it would be hard, but it’s important the Democrats try. A lifetime appointment to the nation’s highest court is not something they should let through without a knock-down, drag-out fight. The Republicans succeeded in stealing this seat from Merrick Garland, President Obama’s nominee from a year ago, with extreme tactics. The Democrats need to fight fire with fire – especially considering that after Gorsuch’s repeated non-answers this week, they were given no reason whatsoever to vote for him.