Following the all too common trend in modern Supreme Court confirmation hearings, Gorsuch’s appearance before the Senate Judiciary Committee were a continuation of the politicization of our judicial system. Ever since Robert Bork’s famously caustic hearings took place in the 1980s, there has been an increasing politicization of our nomination process for Supreme Court nominees. Bork’s hearings, in a Democratic-majority Congress at the end of Reagan’s presidency, resulted in denial of his nomination from the Senate, 42-58. Unlike the current nomination, Gorsuch’s hearings have not been a substantive discussion on what our country wants from a justice. This is because nominees are reluctant to answer, in order to avoid being “borked.”
Gorsuch’s nomination as expected, contained plenty of Democrats trying to ask gotcha questions and Republicans asking softballs. When confronted with important precedent, Gorsuch had plenty of “The Court has said … ,” a gentle nod that nominees do not like the precedent but give the appearance that they will uphold. The problem with these types of discussions is, no one knows if they will. When confronted with Brown v. Board, Gorsuch was more than happy to call it a “one of the shining moments in our constitutional history.” However, when confronted with Lawrence v. Texas, a 2003 Supreme Court case about anti-sodomy laws that were really about anti-homosexuality, Gorsuch stated to Senator Richard Blumenthal, D-Connecticut, that he would give the same answer as he had about other precedents, namely that it was settled law according to precedent. That hasn’t, however, settled the fears that have arisen from other justices who have hastily overturned precedent regardless of promises to do the opposite. The concern for this comes from a dissertation that Gorsuch wrote where he seemed to take a stance that opposed rights for same-sex couples, rights to autonomy, and rights to privacy. In it, he states that “State laws against bigamy, gay marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity” are all at risk if we take seriously what Justice Scalia derided as Casey’s “famed sweet-mystery-of-life passage.” This is, of course, referencing the 1992 abortion case Planned Parenthood v. Casey.
Among my favorite softball questions were, as Time Magazine documents:
- “What is the answer to the ultimate question of life, the universe, and everything?” – Senator Ted Cruz, R-Texas.
- “Would you tell me where your favorite fishing stream is?” – Senator Mike Crapo, R-Idaho.
- “Would [you] rather fight 100 duck-sized horses or one horse-sized duck?” – Senator Jeff Flake, R-Arizona.
- “Does a good judge decide who should win and then work backward to try to justify the outcome?” – Senator John Cornyn, R-Texas.
The blame is not totally on Gorsuch’s shoulders. Our senators, our rampant media coverage, and even we are somewhat to blame for this situation. But, the lack of substance, the proliferation of softball questions, and the many more difficult ones unanswered leaves me unsatisfied.