The big news out of Washington, D.C., this week is, of course, the Supreme Court nomination hearings for Judge Neil Gorsuch. Focus’ own Tim Goeglein, who is based in Washington, attended Monday’s hearing.
I’m actually in D.C. today for some meetings, and the hearings are what everyone is talking about here in the nation’s capital – as I suspect is the case across the country.
Today, for the third day, Judge Gorsuch is answering questions from the 20 Republican and Democrat senators who are part of the Senate Judiciary Committee. Judge Gorsuch is fielding some challenging questions – as should be the case for anyone who is being nominated to our nation’s highest court for a lifetime appointment.
At the risk of stating the obvious, the basic goal of Supreme Court nomination hearings should be to learn how a nominee – in this case, Judge Gorsuch – approaches a case, and what his general philosophy on judging is.
In other words, the senators should be trying to learn how Judge Gorsuch goes about deciding cases. Does he actually walk the walk of being a good judge?
Here are three examples of questions that help paint a picture of what kind of justice Judge Gorsuch is and would be on the Supreme Court (and here are 10 more):
- Do you see the Constitution as a “living document” to be interpreted in light of changing societal values, or are you an originalist who seeks to faithfully interpret our founding document as it was written in 1787?
- Do you consider yourself to be independent from President Donald Trump? Will you measure contested Trump Administration policies according to the Constitution?
- How would you approach cases before the Court in light of precedent, meaning previously decided court cases on the same subject?
That’s what these hearings are supposed to be about.
But unfortunately, that’s not how it’s always been over these past three days.
Instead of seeking to find out about Judge Gorsuch’s judicial philosophy, some of the questions by some of the senators have been blatantly political. Some senators have even directly inquired about Judge Gorsuch’s personal views or have sought to receive reassurance that Judge Gorsuch would rule one way or another on their “pet” issues.
For example, Sen. Dianne Feinstein from California, the ranking member of the committee, asked Judge Gorsuch, “Do you view Roe as having super-precedent?”
In other words, Sen. Feinstein wanted Judge Gorsuch to agree with her that Roe v. Wade is an untouchable sacred cow.
His response? That Roe … “has been reaffirmed many times.”
And at first blush, that answer might be disappointing to pro-lifers like us. Those of us who understand the cruelty of abortion want Judge Gorsuch to stand up and proudly proclaim he’s pro-life.
But of course, he can’t do that.
What umpire stands up before a game and proclaims his personal views?
How could citizens exercising their right to go to court believe they could get a fair shake from a judge who has already declared his views?
Judge Gorsuch is right to say subsequent cases have affirmed the Roe v. Wade decision, because they have.
But that doesn’t mean that the ruling is now set in stone, a “super-precedent,” if we’re to use Sen. Feinstein’s made-up, fake legal term.
As conservative lawyer David French writes the reality is, the Supreme Court has reversed itself dozens of times, including when it rightly overhauled itself on the doctrine of “separate but equal,” which allowed for segregation in the U.S. for 58 years.
And that’s exactly why Judge Gorsuch cannot – and must not – directly answer questions related to specific issues and cases that the Supreme Court may one day hear.
As he’s explained time and time again during these hearings, if he went into his personal views on every issue, he could no longer offer litigants a promise of impartiality.
And that’s also why, during a line of questioning with Sen. Lindsey Graham about Judge Gorsuch’s interview with President Donald Trump, Judge Gorsuch said he “would have walked out” had the president asked him to overturn Roe v. Wade.
“That’s not what judges do,” said Gorsuch.
And that’s exactly what Judge Gorsuch should have done, because a judge’s personal views on issues shouldn’t come into consideration when determining a legality issue before him.
Sen. Ben Sasse of Nebraska elegantly explained this principle during his opening remarks on Monday, when he talked about a judges’ black robes. Why do they wear them? Are they merely a “relic of history”?
To answer, Sen. Sasse quoted none other than Judge Gorsuch, who once wrote:
“[D]onning a robe doesn’t make me any smarter. But the robe does mean something – and not just that I can hide coffee stains on my shirt. It serves as a reminder of what’s expected of us – what Burke called the ‘cold neutrality of an impartial judge.’ It serves, too, as a reminder of the relatively modest station we’re meant to occupy in a democratic society. In other places, judges wear scarlet…. Here, we’re told to buy our own plain black robes – and I can attest the standard choir outfit at the local uniform supply store is a good deal. Ours is a judiciary of honest black polyester.”
I hope you’ll take ten minutes to watch the totality of Sen. Sasse’s wise words – it will be well-worth your time:
I’d like to hear from you: Do you agree a judge must maintain public impartiality and not comment on his personal opinions on political issues? What do you think about Judge Gorsuch’s answers during the nomination hearings? What questions would you ask Judge Gorsuch? Let me know in the comments section, below.