Judge Neil Gorsuch is headed toward Senate confirmation. Ever since the President made the nomination, it has been hard to imagine another outcome. Short of some scandalous skeletons emerging from Judge Gorsuch’s closet—a closet that, by all accounts, appears safely devoid of anything of much interest—this is a loss Democrats expected. The Republicans have the votes to put Gorsuch on the Court (although they may need to invoke the “nuclear option” and eliminate the filibuster to do so). Gorsuch’s strong performance in the hearings only gave them more reasons to support him.
Knowing this was a loss they were going to have to absorb, Democrats still hoped to at least score some political points during the hearings. It was a highly visible opportunity to advance their concerns with the politics surrounding the nomination process and the nominee’s conservative jurisprudence. Yet here too, I think the Democratic efforts should be judged a loss. They were unable to take advantage of the hearings to advance their agenda in any meaningful way.
Short of actually blocking the appointment of Gorsuch to the Supreme Court, here are three goals that Democrats sought to advance at the hearings:
First, they wanted to use the nomination to return the nation’s attention to the injustice of last year’s Republican blockade of the nomination of Merrick Garland.
Second, they sought to poke holes in the whole judges-as-neutral-umpires safety shield that nominees have used to avoid answering substantive questions about how they approach those hard cases where value-informed judgment is required. Although both liberal and conservative nominees have used this strategy, conservatives, as my colleague Carolyn Shapiro has shown, have found ways to deploy it with greater effect.
And third, Democrats hoped to use the hearings to challenge what they view as fundamental flaws of originalism, the theory of legal interpretation that Justice Scalia famously advocated and that Judge Gorsuch has embraced.
Getting any leverage out of any of these three lines of attack proved harder than Democrats hoped, however. They tried, but came up short on each of these goals.
The Garland Taint
Using the ghost of Judge Garland as a weapon to attack Judge Gorsuch and Republicans proved hard to do effectively, in part because expectations among some on the left were unrealistically high. Some liberals went so far as to argue that to protest the Republican Senate leadership’s refusal to hold hearings on Garland, whom President Obama nominated soon after Justice Scalia’s death, there should be no hearings or that Democrats should refuse to participate or that they should categorically reject any Trump nominee. One need not defend what Republicans did to believe such responses strategically ill-advised. Democrats had no ability to prevent the hearing from taking place. And refusing to participate was never a wise move. American politics run on short memory, and leveraging a past norm violation as justification for a new one might satisfy a desire for retribution, but it makes for a weak case beyond those who are already on your team.
I also think that the effort to use the Garland episode to justify opposition to Gorsuch missed a key point. The legitimacy of the Republican strategy was adjudicated in the only way that these kinds of nonjusticiable constitutional disputes (the courts were not about to weigh in on the issue) can be: through the political process. We had an election. Although some Democrats sought to make the Republican blockade a decisive election issue, they failed. They failed in those Senate races in which they targeted Republican blockaders. They failed in the presidential race, where Hillary Clinton saw little advantage in making it a major issue of her campaign. It was fine for the Democrats to keep the issue in the air at the hearings. But enough Americans had basically accepted that right or wrong, dirty pool or not, the Republicans had won this one and it was time to move on
(One caveat to this reading of the 2016 election: Since most polls had Clinton winning, there was likely less mobilized opposition to the Republicans on this issue than there would have been otherwise. Most assumed it wouldn’t matter in the end. If it had looked like Clinton was going to lose, I assume Democrats would have made it a bigger campaign issue.)
Democrats tried to move Gorsuch off his carefully refined talking points about there being no Republican judges or Democrat judges, but only judges. They wanted to force him to concede that hard cases demand judgment and that judgment necessarily draws on a judge’s view of the world and values. They wanted to talk about Gorsuch’s values because they believed a more direct discussion about his conservative ideology would allow them to question whether in fact the American people wanted someone with his particular set of conservative commitments. This was a highly difficult, perhaps impossible, task. Robert Bork was willing to engage with these kinds of challenges, of course, but we all know how that turned out. Gorsuch had been carefully prepared to avoid that fate. He made Democratic efforts particularly ineffective because he was so uncompromising in hewing to the neutral-umpire line and because he was highly skilled at pulling it off. (Perhaps not quite as smooth and persuasive as Chief Justice Roberts had been at his confirmation hearings, but Roberts set an impossibly high bar.)
The Democrats also lacked sufficient ammunition for this line of attack. They had a handful of cases in which Gorsuch’s reading of the law led to him outcomes that the Democrats saw as unjust. The most discussed example was the so-called “frozen trucker” case. But Gorsuch was able to offer an effective two-pronged defense, indicating that he sympathized with the victims in these cases but then claiming that he was just doing what the law demanded. The law made him do it. He was just applying the law, neutrally. Since Democrats were unable to make a strong enough case that Gorsuch in fact injected his own values into his reading of the law (as judges inevitably do in cases where the law does not offer a clear answer), he emerged from these dialogues largely unscathed, and perhaps even strengthened, since he was able to portray himself as someone who is willing to follow the law even when he does not like the outcome it gives him.
Democrats also sought to go after Gorsuch’s self-declared commitment to originalism as a theory of constitutional interpretation. Advocates of this theory believe that the Constitution should be read to mean what it meant at the time the American people ratified the text.
Originalism is vulnerable to challenge. Beneath its common sense, bumper-sticker appeal (the Constitution means now what it always meant—end of story) and its hard-to-challenge reverence for the Founding Fathers, originalism relies on potentially unattractive assumptions about American constitutionalism. Do we really want to be ruled by the “dead hand” of the past? Originalism also produces some distinctly unappealing results. This is originalism’s “Brown problem.” Originalism gets Brown v. Board of Education wrong: relying on the original meaning of the Fourteenth Amendment would allow for racial segregation in schools. And no one wants to be on the wrong side of that case. Even Judge Gorsuch, who refused to agree or disagree with pretty much any case the Court has decided, eventually went on record as saying that Brown was rightly decided.
The challenge of this angle of attack is that it quickly gets into the weeds of legal theory and the deep recesses of constitutional history. Legal commentators lament the Democrat’s unwillingness to ask the kinds of follow-up questions that might expose the weaknesses of originalism, but this assumes that these kinds of follow-ups would actually serve a purpose in the context of the confirmation hearings. Do the American people really want to hear a discussion about the difficulties of selecting the appropriate level of generality to determine constitutional meaning? Do the senators have the knowledge or inclination to engage 18th-century debates over the meaning of due process? The Democrats assumed, probably correctly, that these were rabbit holes they did not want to go down. So they did not really challenge Gorsuch to squarely confront the weaknesses of his chosen method of constitutional interpretation. Constitutional law professors were throwing their pocket Constitutions at their TVs (or computers or smartphones), but originalism emerged from these hearings no worse for wear.
Although the Democrats did not, in the end, get as much out of the hearings as they had hoped to, it is important to note one important achievement of the hearings, although one that transcends partisan politics and should be counted as a win for the American constitutional system. The hearings offered four days of discussion about the value of the rule of law and the independent judiciary. On this point, Democratic and Republican senators and the nominee himself were all on the same page. It’s an important point to be heard, never more so than today.
This post originally appeared on ISCOTUSnow, the blog of Chicago-Kent’s Institute on the Supreme Court of the United States, on March 27, 2017.