Will Judge Neil Gorsuch get "Borked?"
Some Democrats, still seething over the stalled U.S. Supreme Court nomination of Merrick Garland, are trying. But their dream of delivering political retribution has, thus far, fizzled. That is not likely to change.
Gorsuch’s credentials are too impeccable, his intellect too keen and his temperament too even to fall victim to the kind of debasement that felled Judge Robert Bork and coined an infamous phrase.
If the Gorsuch confirmation hearings have proven anything, it’s that his opponents have no powder in their guns. Try as they may, there is little in the record of Neil Gorsuch that can be faulted. His rulings have been fair, his legal mind agile, and his fidelity to the law unimpeachable.
For conservatives, Gorsuch is the anti-Bork --the right messenger, delivering The Right’s message.
It has been 30 years since the shameful treatment of Bork, a brilliant, albeit conservative U.S. Court of Appeals judge whom President Ronald Reagan nominated to the Supreme Court. The ensuing Senate approval process in 1987 devolved into a detestable campaign of lies and vilification, which diminished the stature of the Senate and forever altered the discourse in judicial confirmation hearings.
Bork and Gorsuch possess remarkably similar credentials. Both served as top officials in the Department of Justice. Both became scholars of antitrust. Both were elevated to the United States Court of Appeals. And, importantly, both fervently embraced the judicial doctrine of “originalism.”
The Verb “To Bork” Is Born
“Originalism” is the belief that judges should attempt to interpret the original words of those who authored the Constitution, as they were understood at the time they were written. It eschews the growing practice among liberal judges to make law by “legislating from the bench” and interpreting the founding fathers' words through the lens of modern mores.
Bork was an early advocate of originalism and became the first Supreme Court nominee to openly support what was then a new brand of judicial conservatism during a confirmation hearing. For Democrats, it was the equivalent of a jurisprudential boogeyman. They reacted with alarm, declaring originalism hostile to their own notion of expanding individual rights and anathema to idea of the Constitution as a “living” document that should evolve over time, depending on how the political winds blow.
A bitter and divisive ideological war was waged against Bork in the Senate, as Democrats grossly misrepresented the nominee’s views and smeared his good name with unconscionable deceit. His elevation to the high court was defeated, and the verb “Borked” was conceived.
The ugly stain was set a mere 45 minutes after President Regan announced his nominee. Sen. Ted Kennedy, D-Mass., took to the floor of the Senate to deliver a mendacious denunciation:
“Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution," Kennedy bellowed, spinning a fantastic fable that bore no resemblance to the truth behind Bork’s judicial philosophy.
The stunned jurist remarked, "There was not a line in that speech that was accurate.”
But the damage was done.
Hysteria over originalism has abated over time. It has since become a respected way for many judges to apply the law and interpret the Constitution. Liberals still loathe the concept, but have come to accept it with equanimity, giving Gorsuch the kind of advantage Bork never enjoyed.
And, too, Ted Kennedy is gone. The “Lion of the Senate”, who so dominated the Judiciary Committee in the dark days of Bork, has been replaced by the likes of Al Franken, a non-lawyer who has shown himself to be more of a court jester than a court expert, and not a very able one, at that.
Right Message, Wrong Messenger
While Bork possessed a sterling legal mind, his personality and demeanor were ill-suited for the battle. During the hearings, he proved pompous and combative, surly and priggish. He exhibited none of the affability and wit that so often disarmed his colleagues. He refused to dodge or diffuse confrontational questions. His ripostes were delivered with all the subtlety of a brick to the face. His antagonists recoiled, and so did many Americans who witnessed the fracas on national television.
This is where the comparisons to Bork and Gorsuch end. The new nominee is a model of modesty, charm and composure.
Witness the recent observation of the online liberal/progressive magazine, Slate.com, which aptly described his character and countenance in a column entitled “Neil Gorsuch Is Not a Villain.”
“Neil Gorsuch, Donald Trump’s Supreme Court nominee, is a brilliant, witty, handsome, eloquent, perfectly pedigreed judge," the article stated. "He is, to put it another way, an extraordinarily difficult jurist for Democrats to oppose.”
Nevertheless, Democrats on the Judiciary Committee have tried their level best to oppose Gorsuch with exaggerated or unfounded claims. During questioning, they have all but accused the nominee of pledging allegiance to President Trump, favoring wealthy corporations over the “little guy,” authoring policy on torture, promising to overturn Roe v. Wade, and even uttering a sexist question while teaching a law school class on ethics.
There is no evidence any of it is true, and repeatedly Gorsuch refused to take the bait or otherwise respond with enmity, as Bork did. In essence, the attempt to sully Gorsuch fell flat. Other than an abiding disdain for his judicial philosophy, Democrats have scant justification for opposing him.
For conservatives, Gorsuch is the anti-Bork --the right messenger, delivering The Right’s message.
His honesty about who he is and what he believes is a refreshing change from other nominees who preferred mystery over substance. He is neither a constitutional chameleon nor a spineless sneak cloaking himself in secrecy. Far from it.
The Courage Of His Convictions
Before he ever became a judge, Gorsuch bravely disparaged the very confirmation process to which he must now submit. He was right to do so. In 2002, he decried how "some of the most impressive judicial nominees are grossly mistreated,” citing two appellate judges who were “widely considered to be among the finest lawyers of their generation.”
One was John Roberts, who later became Chief Justice of the Supreme Court. The other turned out to be Merrick Garland, whose nomination by President Obama for the seat left vacant by the death of Justice Antonin Scalia was delayed and derailed by Senate Republicans. Gorsuch averred that confirmations have become so politicized that judges are at risk for being treated as “little more than politicians with robes.” Think what you may of the jurist from Colorado, but that measure of candor takes courage.
Gorsuch has hardly been shy in espousing his conservative views. In a 2005 article for National Review, he took direct aim at both liberals and activist judges:
“American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private school education," Gorsuch wrote. "This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary.”
As for his unabashed endorsement of originalism, Gorsuch has never concealed his admiration for the originalist he would replace, Scalia, though he admits they did not always agree.
"The great project of Justice Scalia’s career was to remind us of the differences between judges and legislators,” Gorsuch said at a memorial lecture in honor of the late justice.
Judges must apply the law as it is, focusing backward, not forward, he said. They should not decide cases based on their own moral convictions.
In an opinion last year, he offered a more concise guiding principle, “Judges judge best when they judge least.”
At his confirmation hearing, Gorsuch has refused to back away from his originalist convictions. In his opening statement, he described Scalia as a mentor who "reminded us that words matter –that the judge’s job is to follow the words that are in the law– not replace them with words that aren’t.”
In answers to Senators' questions, Gorsuch consistently pledged strict devotion to the law as written and originally intended, not as others may hope or imagine. In so doing, he adhered to his convictions in a way that is rarely seen among leading jurists.
The Legacy Of Bork
The “Borking” of Judge Robert Bork may have forever altered the way nominees approach their confirmation hearings. Faced with uncomfortable questions about their views on abortion, religious liberties, gay rights, gun rights, free speech, federalism and the separation of powers, most nominees now strain to yield as little information as possible. Sincerity gives way to prevarication. Probity takes a back seat to guile. They bob and weave.
It’s like watching a legal version of boxing's famous “rope-a-dope” in the 1974 Rumble in the Jungle. Senators on the Judiciary Committee resemble George Foreman swinging away endlessly, hoping to land a knockout blow. Nominees play the role of Muhammad Ali, leaning against the ropes with gloves raised to deflect the many punches until the opponent drops, inexorably, from fatigue.
An expected contest of judicial philosophies, like the fight, becomes a farce. Any hope of honesty and transparency in the confirmation hearing is lost to the trick of an evasive technique. Blows (competing ideas) are absorbed and soon dissipate. And everyone departs the arena none the wiser. Least of all, the American public.
And so it is that nearly all Supreme Court nominees since Bork have volunteered precious little about what they may believe or how they might decide cases that affect, sometimes dramatically, the lives of citizens everywhere. It is the unfortunate legacy of Robert Bork.
To his credit, Gorsuch faced many of the hard questions with a forthright mien and manner uncommon among recent confirmation hearings. He sought not to deflect or demur whenever a response might pose a risk. Perhaps it is because his rectitude is beyond reproach. Maybe it is because the vast majority of his rulings are justified under the law and, therefore, correct.
Inevitably, some in the Senate chamber will vote against Gorsuch. They will do so not because he is unqualified, because surely he is. They will do it because it is politically prudent or electorally expedient. And in Washington, after all, partisan politics is king these days.
But when Neil Gorsuch is confirmed to the Supreme Court, he will bring with him the potential to become one of its giants. He appears beholden to no one and cares only about following the law, wherever it may take him, as he made plain in response to one Senator’s question:
“A good judge doesn’t give a wit about politics or the political implication of his decision," he said. "My job is not to write the laws, but to apply and interpret those laws. Whether mighty or meek, rich or poor…everyone is protected by our laws equally."