This is a transcript of Episode 64 from Amicus, Slate’s podcast about the Supreme Court. These transcripts are lightly edited and may contain errors. For the definitive record, consult the podcast.
Dahlia Lithwick: Hi, and welcome to another special edition Amicus, Slate’s podcast about the Supreme Court. I’m Dahlia Lithwick and I cover the courts and the law for Slate. Now it doesn’t happen all that often that a Supreme Court nomination hearing turns out to be only the fourth most urgent news story on Capitol Hill in a week, but between Jim Comey, the fight over health care, meltdown in the House Intelligence Committee, you may have missed a little bit of the nuance of the four-day marathon hearing we just had for Neil Gorsuch. Well, never fear, friends, we at Slate sat through the whole damn thing so you didn’t have to and we are delighted to bring you this bonus episode of Amicus to review it. Joining me today are Mark Joseph Stern, he also covers the law and the courts for Slate. Hey, Mark.
Mark Joseph Stern: Hi, Dahlia.
Lithwick: And we are delighted to welcome for the first time on the show Ron Klain. He served as senior White House aide to both Barack Obama and Bill Clinton. He oversaw Clinton’s judicial nominations, he directed judicial selection efforts, and he led the team that won confirmation of Ruth Bader Ginsburg to the Supreme Court. Ron, welcome to Amicus. It is a thrill to have you here.
Ron Klain: It’s a thrill to be here.
Lithwick: I’m going to ask you guys the simplest question that I was asked in every radio hit I did this week, given the sort of lose-lose setup for this proposition for Democrats: Did anyone on the Democrat side win? Was there a win given that Judge Gorsuch pretty much looked lovely and kind and that was the only issue, seemingly, before the committee? Did Democrats lay a glove on him? You start, Ron.
Klain: Well, look, I think that some of the Democrats did quite well. These hearings have morphed from being really genuine question-and-answer sessions into something more like oral arguments at the Supreme Court where the senators are asking questions but really making arguments in the form of questions. I thought that in that regard, if you think about it that way, I thought Sen. Franken did a really good job of laying out the case against Judge Gorsuch on a number of points. I thought Sen. Klobuchar as well, really made a comprehensive case against him. Chris Coons pointed out some of the inconsistencies in some of his views and approaches. Sen. Leahy laid some good bear traps too. I don’t think the hearings were a success in terms of learning anything new about Judge Gorsuch that we didn’t know before they started, but I do think they laid the groundwork for growing Democratic opposition to his nomination and of course the hearings ended with an announcement from Chuck Schumer that he would be leading a filibuster against Judge Gorsuch. So if you’re a Gorsuch opponent the hearings seemed to rally the cause against his confirmation.
Lithwick: Mark, do you feel that, I guess I should just betray my own feeling, which is if the Democrats were going to filibuster, why show up at all? You sort of lose by even having a four-day debate about the merits. We were never going to get to the merits, so why show up?
Stern: Yeah, I think I agree with that assessment a bit more than Ron’s. I think that Ron is definitely right that Franken and Klobuchar and Whitehouse especially got in some really good questions and a few political points maybe that they can take home and run around with and say, “Look how well I did.” In the future when Gorsuch issues some horrible ruling on employment law or whatever, they can say, “Look, we knew he was going to do this and we warned you.” But beyond that I’m not sure how effective any of the questioning was because, like you said, they were still there, they showed up, they wore nice clothes, they were polite, they called him Judge Gorsuch, they did all of the stuff that you’re supposed to do for a real, genuine, legitimate Supreme Court nominee, which of course Republicans refused to do for Obama’s nominee Merrick Garland.
Just by showing up and doing all of that courteous stuff, I think they sort of surrendered the moral high ground that they still attempted to cling to throughout the hearings where they would sporadically bring up Garland, talk about what an injustice it was, and then just flip back to Gorsuch and continue as though, “Yeah, it was an injustice but now we have to move on.” I think overall there were some really nice moments, we can talk about them, it was occasionally fun to watch, but for the most part, just by sitting through all four days going through the motions, they kind of lost.
Klain: Can I disagree with that little bit? As I said at the outset, I think that you have to see these as like oral argument in court where the senators are speaking to their colleagues and the public to some extent. Ultimately the test for the Democrats is can they put up 41 votes against invoking cloture and can they hold their team together. I think that to do that I think it was important for the Democrats to come to the hearing and make a case against Judge Gorsuch’s confirmation, which they did by and large and I think pretty effectively. I think that if they had not come I think that would have created more of a divide among the Democrats and probably might well have taken the right side of the caucus and given them more of an excuse to vote with the Republicans on this cloture vote. I think now they’ve laid a groundwork to hopefully be unified and to stand up against his confirmation with some of the less aggressive senators on the Democratic side rallying behind and being persuaded by some of the arguments that were made.
Lithwick: I think I agree with you, Ron, although I would say, for me, the sort of the emblematic moment of these hearings was the testimony, the introduction on the very first day Barack Obama’s acting solicitor general, Neal Katyal, got up to introduce the nominee. I thought what he said really highlighted the tension that the Democrats were going to have to struggle with. He more or less said, “Look, not having a hearing for Garland, not seating Garland is sort of an existential wound, it’s like a bruise, but if we’re going to get over it here’s a good guy to get over it with. Ladies and gentleman, Neil Gorsuch.” I thought that that tension of, “We’re affronted, this is horrifying. We can’t even sit here because it’s appalling, but let’s get to his record on reproductive rights.” I thought that that was such a confusing message that now even the conversation about a filibuster, I’m not even sure if Democrats know whether they’re filibustering Ron because of his record or because of the existential wound that is Merrick Garland.
Klain: Or C, all of the above. Look, Neal Katyal is a big advocate for this nomination. He wrote an op-ed the day Judge Gorsuch was nominated calling for his confirmation and it’s his right to do that, but he’s certainly not advocating a point of view of the Senate Democrats, the Democratic caucus on this and I think some people will oppose Judge Gorsuch because of what happened to Judge Garland, some will oppose him because of his views, in the end I think that it doesn’t really matter how they get there, just that they get there.
Lithwick: Let me ask you both this question, because this is the other thing that I think is probably at the forefront of people’s minds and that is: I think we can stipulate—and I’ve seen at least some work done on this—that Judge Gorsuch actually talked less about doctrine, about case law precedent than folks who’d come before, than John Roberts, than Elena Kagan, than Justice Kennedy. If we can all agree that he, and I think you wrote about this in your colloquy, Ron, with Hugh Hewitt this week, this strategy of saying close to nothing about doctrine, about law means that the only thing left to talk about is, “Are you a good person?” Right? I mean character, that’s all that’s left on the table. Is that just going to be a disaster?
That was a disaster for Justice Alito because it ended up being a referendum on “Are you a racist?” It was a disaster for Sonia Sotomayor because it was like, “Are you prejudiced against white men?” Every time we turn this into a referendum on character and goodness of heart the nominee comes out looking either like a monster or like they’ve been wronged. This seems like the worst possible framing and it happened again where all the Republicans on the committee were like, “Why are you saying he hates children with autism? You’re attacking him.” That can’t be the smart way through this, right?
Klain: Yeah, look, I think that we have two things going on here. One is it’s always a challenge to try to have these confirmation hearings about these complicated issues of law, constitutional law, and not have it become a big debate about the results of the cases and does Judge Gorsuch care about frozen truckers and children with autism and all these things. That’s the same problem when the Republicans were going after Kagan and Sotomayor. That’s just an advantage that all these nominees have in the process, but something has changed. And what has changed, as you alluded to Dahlia, is the nominees have just progressively given less and less in the way of answers to these questions.
The Republicans like to cite the Ginsburg Rule, which is something Judge Ginsburg said in her confirmation hearings where she said, “I’m not going to give any hints, any tips as to how I would rule on cases.” Judge Ginsburg spent many hours before the committee answering in-depth questions about her work as a lawyer, her academic writing, she discussed the Madison lectures at length, where she laid out an equal protection theory for a woman’s right to choose. She put her work at the ACLU before the committee and said, “Judge me by these briefs.”
Each time I think nominees have kind of peeled back less and less and less to where Judge Roberts said, basically, “You can’t read my opinions, you can’t read my briefs, I was just a lawyer, none of this stuff counts.” I think that as a result, to the extent these hearings have any purpose at all, the purpose really is for the senators to have a platform to lay out their views, lay out their case, kind of speak to their colleagues, speak to the public to some extent. They aren’t really producing usable, meaningful, interesting insights about what kind of Supreme Court Justice Neil Gorsuch would be.
Lithwick: Mark, do you agree that if the only issue on the table is, “Hey, he seems like a nice guy. I like his heart,” that we are just setting this up for what looked to be four days of people opining about, “Are you a nice Judge?”
Stern: Yeah, absolutely, and I think that’s why Democratic senators spent so long talking about these two cases, the frozen trucker case and the autistic child case, because they were the only two cases, or two of the very few cases, that Democrats felt that they could glean from Judge Gorsuch’s ruling something about his personality. That he’s cold, he’s callous, he doesn’t care about the little guy. I think that came across as absurd to lawyers. I think both of us thought it was pretty silly, but I think the Democrats felt they were sort of painted into a corner there and it was the only way they could score a point on that front because it had become a referendum on whether Judge Gorsuch is someone you would want to go to a trampoline park with. It just felt very silly, but it felt like, perhaps, it was all that they could do.
My question is whether it helps or hurts Gorsuch throughout the next few steps because to me he came across as really smug and arrogant. As he said over and over again, “I refuse to give any kind of insight into any substantive views on the law that I may or may not hold. You’re just going to have to confirm me to hold life tenure on the highest court in the land and the most powerful court in the world, really, and then figure it out from there.” You know? “Just trust me. I’m a nice guy. I say I’m a fair judge. Trust me, confirm me, and then you’ll have 40 years to figure out whether I was telling the truth.”
Lithwick: Right, the bighearted robot of likability. It was—
Klain: This, I think, bends back to the very first conversation we had, the first part of this, which is, did the hearing serve any purpose? Did the Democrats get anything out of them? I actually think, and I wrote this in my piece in the Post, I actually think the White House miscalculated here and I think Judge Gorsuch will pay a price for really saying nothing, admitting nothing, offering nothing. I think that this argument that he answered no questions, he told us nothing, is going to give a framework for the more conservative members of the Democratic caucus to vote against Judge Gorsuch and vote with the Democrats filibustering Judge Gorsuch because I think it’s a nice, neutral principle for them to stand behind and I think he overplayed his hand here. I think his interactions with some the senators were a little terse and really just harshly nonanswering. I think that is going to be a rallying point inside the Democratic caucus and will help unify the Democrats against Gorsuch.
Lithwick: Ron, I want to ask you this because I feel like I’ve heard you talk about this and I’ve talked about this. I think we’ve even argued about it over the years. I’m not a big fan of the little guy framing and I’m not a big fan of it in large part because it’s easy to answer, which is every Republican responds to that by saying, “Do you do in with preconceived ideas that because of someone’s wealth or status they should …” It’s too easy to flip it to, “This isn’t neutral, this is bias.” I don’t know how much the idea that liberal judges are meant to have a big thumb on the scale for the little guy has meaning and resonance for people. I think it may feel as though it’s simply biased and it’s so easy to skate past it.
Maybe the quintessential little guy in these hearings invoked time and time again is the trucker, frozen trucker Al Madden. In very, very condensed form, he decides because it’s freezing and his truck is broken to go against company policy and ditch his cargo and take the cab of the truck for which he is later fired. Judge Gorsuch writing in that case sides against the trucker, even though, as we hear time and time again, it’s entirely possible that Al Madden would have died of hypothermia had he abided by his company policies. He becomes the symbol of the heartlessness of Judge Gorsuch. Let’s listen to Al Franken really tee off on him about the frozen trucker.
Al Franken: The rest of the judges all go, “That’s ridiculous. You can’t fire a guy for doing that.” There were two safety issues here. One, the possibility of freezing to death, or driving with that rig in a very dangerous way. Which would you have chosen? Which would you have done, Judge?
Neil Gorsuch: Oh, Senator, I don’t know what I would’ve done if I were in his shoes and I don’t blame him at all for a moment for doing what he did do. I empathize with him entirely.
Franken: OK, we’ve been talking about this case. You hadn’t decided what you would’ve done? You hadn’t thought about it for a second what you would’ve done in his case?
Gorsuch: Senator, I thought a lot about this case because I—
Franken: Then what would you have done?
Gorsuch: I totally empathize and understand—
Franken: I’m asking you a question. Please answer questions.
Gorsuch: Senator, I don’t know I wasn’t in the man’s shoes, but I understand why he did—
Franken: You don’t know what you would’ve done? OK, I’ll tell you what I would’ve done. I would’ve done exactly what he did.
Gorsuch: Yeah, I understand—
Franken: And I think everybody here would have done exactly what he did. I think that’s an easy answer. Frankly, I don’t know why you had difficulty answering that.
Lithwick: Let’s start with you, Mark, does Franken really score points by getting Judge Gorsuch to say the truth is I would’ve gotten out of the truck if I was freezing too or is this just kind of playing on heartstrings and feeding the idea that the Republicans on the committee are so bound by, that judges don’t let their hearts intervene, this is about law, law is law.
Stern: Well, I think he scored political points, and I think he scored emotional points, for sure, because it’s a very sad case and Gorsuch reached the wrong conclusion, not just legally, but also morally. It’s just a sort of disgusting thing to say that this poor, frozen trucker should have basically let himself die and that the fact that he didn’t was grounds for his termination. On the other hand, I did not find that exchange exceedingly persuasive on legal grounds because Gorsuch’s decisions, his dissent from that ruling was not this utterly callous, disgusting refusal to recognize the trucker’s humanity. It was just a statutory interpretation decision where he came out the other way and honestly his clerk probably wrote it and he didn’t spend a lot of time thinking about it. You can definitely use that against him and most people are not going to think about it that way.
But I found the much more compelling Franken point to be when he talked about the series of 5–4 decisions by the Roberts Court of really crushing consumers’ rights. In cases like AT&T Mobility v. Concepcion from 2011, a case that not many people know about but that was just an excellent illustration of how the current courts’ conservatives, they don’t have a thumb on the scale for the little guy, they aren’t neutral, they have a thumb on the scale for the big guy and they are willing to depart from all of their usual doctrines of statutory interpretation in order to read the penumbras and emanations of a really old federal law in order to prevent a state like California from protecting consumers and protecting consumers rights to launch class actions against scammy companies.
That was basically the whole thing in Concepcion and it was ridiculous and absurd and crushed a lot of types of class actions in this country. I thought that was a really strong point that Franken made, but he somewhat muddled it. He didn’t quite get the law right and he didn’t get it out nearly as well as he did get out all the facts of the frozen trucker case. I was a bit puzzled as to why he devoted so much of his time to this one case that almost literally every other Democratic senator talked about and not the cases where you have demonstrable evidence of the Supreme Court’s conservatives putting a thumb on the scale for the big guy in an effort to crush the little guy because their friends own businesses and they like corporations more than workers and consumers.
Lithwick: So, Ron, let me ask you, the thing that Mark just said that I think is interesting is Democrats win when they talk about when judges are on the side of big corporations. Democrats may not win when they talk about individual plaintiffs because, as I said, maybe it opens the door to saying, “What you just want us to be is biased?” Thoughts on the frozen trucker exchange, was that a big win for Franken?
Klain: I think it was. Look, I mean there are two sides to this and obviously Judge Gorsuch in that case ruled for a big trucking company. I think it’s a specific illustration of Mark’s broader point, which I absolutely agree with, about the decision of the Roberts Court in an effort to take that and connect that to one of Judge Gorsuch’s decisions. John Roberts isn’t sitting before the committee right now, Judge Gorsuch is.
One of the challenges, I will say from working for the Senate Judiciary Committee, working for senators, helping them get ready for this, is you have to play the cards you’re dealt. The courts of appeals decided a lot of really super-boring and uninteresting cases and if you’re going to try to get people’s attention, get people to focus on these things you sometimes need to use these cases with colorful facts and to try to illustrate the point. Obviously there may well have been better ways to do it and what Franken was arguing there, with some of the points about the Roberts court that Mark was making, but by and large what Senator Franken’s trying to do, and I thought what he did pretty effectively, was make the point that Mark was making, which is that we now increasingly have a federal judicial system that sides with big corporate interests against consumers and individuals. I think this particular case, the trucking case is just an illustration of that.
Lithwick: I wonder if that can segue into what I thought was the most interesting exchange of the hearing, and that was Sheldon Whitehouse going back and forth with the nominee on this question of we have a consistent 5–4 Roberts split where not only did they side with corporate interests, but they’re siding with corporate interests to promote dark money, corruption, complete monstrous change of the system. Let’s listen for a minute to that exchange and see if it maybe lands in a way that’s more effective.
Sen. Sheldon Whitehouse: Here’s a live example right now. We have this $10 million that is being spent on behalf of your confirmation. Do you think for instance that we on this panel ought to know who is behind that? Answer that and then I’ll go on to a related question.
Neil Gorsuch: Senator, that’s a policy question for this body.
Whitehouse: Well, it’s also a question of disclosure. You could ask right now that as a matter of courtesy, as a matter of respect to the process, that anybody who is funding this should declare themselves so that we can evaluate who is behind this effort?
Whitehouse: Right? That wouldn’t be a policy determination. That would be your values determination.
Gorsuch: It would be a politics question and I’m not, with all respects, Senator, going to get involved in politics. If this body wishes to pass legislation, that’s a political question for this body and there’s ample room for this body to pass disclosure laws for dark money or anything else it wishes too. It can be tested in the courts. So, Senator, with all respect, the ball’s in your court.
Whitehouse: Do you really think a Supreme Court that decided Citizens United doesn’t get involved in politics?
Lithwick: Let me ask you this question, this was a big theme throughout the hearing, which was, “Hey, I just decide the law. Congress, you want to protect the little guy, you fix it, you pass better laws for students with autism, you pass better campaign finance laws, you pass more disclosure laws.” It’s a little bit of a trick because of course we had McCain-Feingold. Congress passes these laws so to suggest that the ball is in your court seems—it’s very persuasive rhetorically, but, huh?
Klain: Yeah, to me, Dahlia, I agree with this being the most important and telling exchange of the hearing on a number of levels. First of all, it’s borderline deceptive by Judge Gorsuch to say, “OK, Congress, you go ahead and pass some law.” When he wouldn’t answer, by the way, later, if he would vote to uphold such a law. In fact, Justice Thomas has said such laws are unconstitutional. As a doctrinal matter here there’s a big elephant in the room about whether or not Congress passed such a law, which of course is not going to happen with a Republican Congress, Judge Gorsuch would then turn around and vote to strike down such a law, so let’s put that aside for a second.
More fundamentally, I think the most underreported thing that’s happened around this nomination is the fact that Sen. Whitehouse alluded to, which is the enormous spending of dark money, to first block the Garland nomination and then advocate the Gorsuch nomination. I think when it’s all racked up, when this is all over, we’re going to see $30 million having been spent to block Garland and get Gorsuch confirmed. That’s really a politicization of this process that almost turns our Supreme Court nomination process into a state court judicial election with special interests spending money and trying to get their people elected. That’s a real turn in the process.
I think if you take a step back here and you look at where this is headed, why does that kind of money get spent to block Merrick Garland and get Neil Gorsuch confirmed because there are obviously special interests and big money interests that have a stake in the outcome of this. I think in the future presidents will know that if they want their nominees confirmed they’re going to have to pick people who appeal to those special interests. I think more and more you’re going to see the Supreme Court become like the House of Representatives wearing black robes. Basically Democrats have to pick people that rally their base and draw in huge special interest money and huge advocacy money to get their people confirmed. Republicans do the same thing on their side and this gets more political and looks more and more like our Congress. That shift here, that acceleration in the process toward politicization, toward fundraising money, TV ads, I think we will look back at the Gorsuch nomination as a big landmark in that pathway.
Stern: Ron, I think this ties back to a point that you made really well in your recent piece with Hugh Hewitt where you mentioned that Republicans are constantly alleging that it was Democrats who corrupted the Supreme Court nomination process by borking Bork and then with the Thomas allegations. Whatever the merits of those claims I think that we can all agree that what’s happening now is materially different from what happened then. With Bork, it was a very far-right judge being held to account by citing his own rules back to him and possibly exaggerating—we could debate that forever. With Thomas, it was these very serious allegations of sexual misconduct.
Then after that we had a number of pretty easy confirmations followed by eventually the Alito confirmation, the Kagan and Sotomayor confirmations, which became fairly political especially on the Republican side, then Garland, and this, which feels to me just completely different in the political calculus because for the very first time we have outside groups spending a fortune to block one nominee and put another on the Supreme Court for four decades. I just thought that was a terrific point and I think that Whitehouse’s exchange cuts to the core of that, that there is something going on here. Something that is very new and something that I think should be raising alarm bells for pretty much everybody.
Klain: Yeah, I mean I obviously agree with that and I’d add one other point, which is Judge Gorsuch said he doesn’t know who those donors were and I’ll take him at his word, but tomorrow or the next day or at some party the White House throws for him if he gets confirmed, five people could walk up to him and say, “Hey, I’m the guy who wrote the $5 million check,” and we’ll never know that. We’ll never know if he recuses in cases that involve those people, we’ll never know if he’s ruling on their interests directly or indirectly because we’ll never know who they are and he may well. I think at the very least the senators should come back with written questions and demand that he assure them that if he ever finds out who these donors are that he put that on the record, that he recuse from cases that involve those folks and their interests. I think that’s the bare minimum, the bare-bones minimum that needs to happen here.
But I think Mark’s bigger point is the more important, the one I was trying to make before, which is I’m not naive about this process, I’ve worked in this process for 30 years. There’s always been politics in this process. I’m not naïve about the Supreme Court, I worked on Bush v. Gore. I saw a 5–4 decision to hand the presidency to the Republican candidate for president. But what has happened here in the past year and a half is a new twist. I think it will be interesting to see what the final vote on Judge Gorsuch is. We’ve never really had a pure, straight party line on the Supreme Court nominee. There are always some people on one side or the other side. The break in the Bork nomination, six Republican senators voted against Judge Bork. A number of Democratic senators voted for Judge Alito. This may be the low-water mark, or high-water mark if you will, for the partisan-ization and the politicization of the process.
Lithwick: I want to put in one red flag here because I do think, and I say this as somebody who’s been saying volubly for a year that it’s bad to politicize the courts, that eight justices isn’t enough, that when Ted Cruz said in the fall, “Hey, we’ll keep that seat open for four more years if Clinton wins,” and how damaging that is. That it is damaging on both sides because in the end it just damages the court. Let’s be really clear, this isn’t a D–R fight, this is a fight about an institution that only has as its source of authority public legitimacy and that when you break that, you break it for everyone going forward. I just think it has to be really manifestly clear that what Gorsuch is saying, which is the court is mostly unanimous, that it’s 8–1 most of the time, please don’t turn this into who was appointed by a Republican and who was appointed by a Democrat, it’s so much purer than that, he’s right in some sense, he’s right. Where he’s wrong is when he says, “I’m exactly the same as Merrick Garland, except I get to be here and he doesn’t.” Right?
Klain: Yeah, I mean absolutely. I do think that obviously a lot of the cases of the Supreme Court are not controversial and not ideological and there will continue to be some unanimous decisions, some 8–1s and 7–2s and whatnot, it’s all true, but the controversial decisions, the 40, 50 decisions a year where the court is highly divided, they have to have some kind of legitimacy. If really all the court comes down to is Republicans nominated by Republicans backed by Republican donors who’ve just spent to block Democratic nominees nominated by Democrats, you are just really going to completely politicize those results.
It’s interesting, Dahlia, during the 2016 campaign it’s not just enough that the Republican nominee for president bashed liberal nominees for the Supreme Court, he said John Roberts was like a left wing candidate on the Supreme Court. John Roberts is the second-most-conservative chief justice of the Supreme Court in 150 years. The sharp polarization, the sharp politicization, that’s really what we’re seeing here and I do think this nomination is a sad turning point in that.
Lithwick: I want to ask one other doctrine question and then I’ll ask about the filibuster. The doctrine question is this, did you both hear what I heard, particularly I’m thinking of several exchanges over the couple of days with Sen. Richard Blumenthal from Connecticut, where Gorsuch, having said, “I’m not going to opine. I’m just going to say, it’s case law, it’s on the books.” Then I think very, very seriously departed from that and talked about Brown as a being a seminal case, as being a case that corrected a historic injustice, he talked about Loving in the same terms, then he would not do that when the line of cases from Griswold to Roe to Obergefell. He very much was willing to go beyond his own rules about not opining on precedent to say these were corrections of massive errors in the race context, in the privacy cases he wouldn’t do that. Let’s listen to him going back and forth with Blumenthal and then we can dive into what it all means.
Neil Gorsuch: Griswold, Senator, as you know, held that the 14th Amendment Due Process Liberty Clause provided a right to married couples to the use of contraceptive devices in the privacy of their own home and then Eisenstadt extended that to single persons.
Gorsuch: Senator, those are precedents of the United States Supreme Court. They’ve been settled for 50 years, nearly in the case of Griswold, there are reliance interests that are, obviously, they’ve been reaffirmed many times. I do not see a realistic possibility that a state would pass a law attempting to undo that or that a court of the United States would take such a challenge seriously.
Blumenthal: I have a very simple question for you: Do you agree with the result?
Gorsuch: Senator, I give the same answer.
Blumenthal: Again, I just want to tell you what Justice Alito said in response to that question. He said very simply, talking about Eisenstadt, “I do agree with the result in Eisenstadt.”
Gorsuch: It was an application of equal protection principles.
Blumenthal: I know what it was, I’m asking you for a direct, clear, unequivocal answer.
Gorsuch: Senator, I’m trying to give it to you and as I recall, Justice Alito said the same thing.
Stern: That was very distressing because it seemed very Scalian to me. It seemed to follow this Scalian line of extremely stringent originalism whereby the Equal Protection Clause is read mostly to prohibit race discrimination, formal, state-sanctioned race discrimination and not much else, which has been, I think, debunked by a lot of other originalists, Steve Calabresi on the right, Akhil Amar on the left, this is not necessarily even a mainstream originalist line of thought, but it seemed to be in the tea leaves of what Gorsuch said when he categorized the race cases as seminal and the sex discrimination cases and privacy cases as precedents that exist.
Klain: Yeah, I agree, Mark. I think the three things I take away from this, first of all, we’ve seen this idea that Judge Gorsuch is kind of a selective originalist, super-originalist about some parts of the Constitution, not so into the original text or meaning or spirit of the 14th Amendment, which is also part of the Constitution. Secondly, I think something that didn’t get enough attention at the hearings was Judge Gorsuch’s book, his 2006 book that is ostensibly about assisted suicide and euthanasia, but contains a large debunking of the modern Supreme Court juris prudence, including an attack on Loving itself, at least the due process parts of Loving. I think that there should’ve been more discussion of what we educe from his philosophy about these issues of privacy and personal liberty that appear discussed at length in his book.
I think the third thing is just the reality of confirmation politics. There is this formula, I think, that Republicans have settled on after Bork. The formula is basically, “I’m not going to tell you about anything but I’m going to totally insulate myself from a charge that I want to reverse Brown v. Board or Loving, and so I will stand here and say in a completely unprincipled, and no possible way to defend this way, other than crude politics, 100 percent for Brown, 100 percent for Loving, not going to tell you about the rest of the stuff.” That’s just a formula for confirmation that I think the Republicans have decided upon, and Judge Gorsuch ran that in the most direct and harsh way he could.
Lithwick: Ron, before we let you go, I think we need you to just tell us what to think because everybody at Slate is in a complete hair-pulling, kicking, biting, fight about whether this is the time to filibuster. We can run through why that is, but I think that the outlines of the argument seem to be, “Why filibuster now? He’s going to be on the court anyway, they’re going to blow up the filibuster, we’re going to be super sorry, let’s just do it for the next nominee when it really matters.” I think that’s basically—Mark, is that the extent of the hair-pulling and the kicking and the biting going on at Slate right now?
Stern: Yes, that is, and I think within the Democratic party as well. Do they force Republicans to nuke this filibuster for the Supreme Court nominees now or do they wait until, for instance, theoretically Justice Kennedy steps down in two years and then use that as leverage to push a more moderate nominee? That’s the big fight.
Lithwick: Ron, tell us what we think.
Klain: Look, my thinking on this has evolved over the last several weeks, but to me it comes down to this: First of all, I think Justice Kennedy may well leave this summer and I think that we’re talking about perhaps two nominees this year. The idea that we would not filibuster Judge Gorsuch because Mitch McConnell is threatening to take our right to filibuster away and save it for the next nominee when Mitch McConnell will surely take our filibuster rights away, I just don’t see what we get out of abstaining in that circumstance. It’s a little bit like Charlie Brown and the football. Mitch McConnell’s sitting there saying, “Well, if you do this I’m going to take your filibuster rights away,” but he would just do that the next time anyway.
I think it’s time to call the question. It’s time to take the strong stand, time to draw the line in the sand, and let the chips fall where they may because I don’t see any scenario—I mean, look, the only argument against filibustering Judge Gorsuch is if you really believed that when Justice Kennedy retired and we went to filibuster that nominee that because we failed to filibuster Judge Gorsuch, Mitch McConnell would for some reason not go nuclear on the court-bending choice of Justice Kennedy’s replacement, and I don’t see any reason to believe that.
Given that, given the idea that I don’t think there could be a deal with McConnell or a deal that would be binding, or any kind of long-term guarantee of the Democrats’ rights, I don’t really see why they shouldn’t use their full rights on this nomination given both what happened to Judge Garland and more importantly Judge Gorsuch’s failure to answer questions in the confirmation process and failure to give Democrats any reassurance about his juris prudence.
Lithwick: I wish I could muster up a deep disagreement with that, Ron. I have not got one. Mark, if you want to take the other side and go, I would listen to it.
Stern: No, I just kind of want to curl up in a ball and cry, actually, that would be my preference at this point. I agree with Ron, I think that it’s really stupid to hold Republicans to any kind of promise, especially Mitch McConnell, who doesn’t believe in the concept of things like promises and I just don’t know, if I were a Democratic senator, frankly, what I would do right now. I don’t think that Gorsuch is the worst possible judge that could’ve been put forward. If somehow he wound up getting borked, which I don’t really think would happen, but if he did, I think the next guy might be worse and then they might go nuclear just to get Judge William Pryor on the bench and that would be much more terrifying. I think I agree with Ron. I’m glad that I am not a Democratic senator today and every day of my life, and I’m looking forward to seeing what happens, but I will be watching in abject terror.
Lithwick: I want to end by just noting that we managed to get through an entire podcast about the Gorsuch hearing without mentioning mutton-busting, skiing, basketball, fly-fishing, more basketball, more mutton-busting. If you feel the need to hear all you can hear about those manly, rugged sporting pursuits and their connection to juris prudence, I urge you to listen in on the audio of the hearing. Mark Stern covers on the law and the courts for Slate. Ron Klain served as senior White House aide to both Barack Obama and Bill Clinton. It was such a pleasure to have both of you on the show. Thank you so much.
Klain: Thank you, Dahlia.
Stern: Thank you, Dahlia.
Lithwick: That is going to do it for today’s special post-confirmation hearing for Neil Gorsuch edition of Amicus. We really look forward to hearing your thoughts now more than ever. Our email is Amicus@Slate.com. You can also leave us a comment at Facebook.com/Amicuspodcast or if you’re feeling very generous, a review on our page in the iTunes store. Just search for Amicus is the iTunes store and click on the ratings and reviews tab.