Jurisprudence

Locker Room Talk at the Capitol Hill Boys Club

Neil Gorsuch’s chummy, back-slapping Supreme Court confirmation hearings should’ve been held beside a keg.

U.S. Supreme Court nominee judge Neil Gorsuch.
Supreme Court nominee judge Neil Gorsuch stands up to take a break during the third day of his Senate Judiciary Committee confirmation hearing on Wednesday.

© Jim Bourg / Reuters

Throughout his confirmation hearings, Judge Neil Gorsuch cited former Supreme Court Justice Byron White as a personal hero. White, a John F. Kennedy nominee who served on the court from 1962 to 1993, was a star NFL player before moving to the bench.

Gorsuch, who once clerked for White, explained in his opening statement how much his mentor had shaped him. “He modeled for me judicial courage,” Gorsuch said. “He followed the law wherever it took him without fear or favor to anyone. War hero. Rhodes scholar. And, yes, highest-paid NFL football player of his day. In Colorado today there is God and John Elway and Peyton Manning. In my childhood it was God and Byron White.”

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Now, having a tiny crush on the judge you once clerked for is almost as much a Freudian inevitability as having a crush on your mom. But there was something about the locker room boys club testosterone-licking frenzy of the past week—including a strange kind of alpha male contest between Sens. Ted Cruz, Richard Blumenthal, and the nominee over playing pickup basketball with the deceased Justice White—that began to tip into something that should be taking place in front of SportsCenter, beside a keg.

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Throughout the three days of questioning, the nominee and his interlocutors sometimes appeared primed to strip down and wrestle in the well of the hearing room. As my colleague Katy Waldman put it, the hearings quickly became a kind of Athenian male-bonding spectacle:

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[Sen. Ted] Cruz had wanted to know “what it was like to be a law clerk” for the illustrious [Justice White]. Had Gorsuch been “lucky enough to get him on the basketball court?” Why, to be sure, old boy! White’s “hand-eye coordination,” confided Gorsuch dreamily, “was uncanny.” Of course, the justice had cracked his eighth decade by then, so he and Gorsuch played H-O-R-S-E instead of pickup. Heh heh heh, responded Cruz. Heh heh heh.

Sure, you could read Gorsuch’s frequent rhapsodies about his mentor’s rugged athletic humility as a credit to a great man’s singular character. Yet the other reason Gorsuch invoked White was telling: He also wanted to shoehorn the jurist into a narrative about the decline of civility in the modern judicial confirmation process.

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In an exchange with Rhode Island Sen. Sheldon Whitehouse about politicization in confirmation hearings, Gorsuch noted that “there’s a great deal about this process that I regret. I regret putting my family through this.” He added that when “Byron White sat here, it was 90 minutes. He was through this body in two weeks, and he smoked cigarettes while he gave his testimony.”

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The strange longing for the clubby days of the manly Senate hearings of yore was odd in a hearing pervaded by endless talk of basketball, skiing, mutton-busting, fishing, and bear-skinning. There were moments this week when the Mad Men vibe was so acute that you half-expected someone to send Minnesota Sen. Amy Klobuchar out for coffee.

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I found myself wondering whether White’s confirmation hearing was really all that much better than today’s sad spectacle. So I went back and looked at the transcript of that brief, nicotine-colored hearing—the hazy, magical event that started at 10:30 a.m. Eastern on Wednesday April 11, 1962.

In some ways it truly felt like another world. Telegrams from the American Bar Association were read into the record confirming that White had been deemed well-qualified. In other ways, it all sounds awfully familiar—gratuitous references to Alexander Hamilton included, and long before the guy made it big on Broadway. There is the usual senatorial fretting about how one can possibly predict how a judge will vote. There is the ABA’s assurance that White had clerked for a Supreme Court justice (Chief Justice Fred Vinson). Bernard Segal, chairman of the ABA standing committee on the federal judiciary, describes White as a man having “a rugged adherence to principle,” “scrupulous fairness,” and “deep insight.” Segal goes on to extol White for his “modesty and simplicity, his graciousness and his sense of humor, and the practical soundness of his judgment.”

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Democratic Sen. Philip Hart of Michigan cuts in on Segal’s introduction to point out that “I think it would not be out of order for the record to reflect this is the first appointment of a player of the Detroit Lions to the Supreme Court also.” This prompts Segal to retort, “If you do that then you ought to include for the record that he also played for our Pittsburgh Steelers.”

The bulk of the hearing—which is, indeed, remarkably brief—consists of a statement by White that is entered into the record, and then statements of approval by one senator after another. Here’s where the similarities start to feel truly uncanny. Sen. Sam Ervin, a Democrat from North Carolina, cautions Mr. White to perform his duties as a judge and to “resist the temptation to perform those of a legislative nature while he occupies a seat on the High Court.”

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Then Hart takes a moment to observe to the committee that his earlier “comment about the athletic prowess” of the nominee should not be considered “out of order.” Hart then explains that “anybody charged with the responsibility, and everybody has at least an indirect responsibility in trying to raise children, male children, will find the job enormously helped by being able to point to an outstanding male such as Mr. White.” But he’s not done. Hart adds, “People are hesitant to say these things because it is thought to be ‘corny’ but it is literally true that America will have in him an extraordinary example of a man who combined great physical skill and intellectual capacity with the resulting product of the outstanding citizens in service.”

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And that, Sen. Cruz, is how sucking up is really done.

Sen. Kenneth Keating, a Republican from New York, feels the need to pile on with yet more fan boy support for the impossibly cool nominee. “Would the senator yield on that point?” he asks. “The senator from Michigan and the senator from Tennessee and I, particularly, and others on the committee too, have had great interest in professional football and baseball legislation, and if any of that ever reaches the court, it would be wonderful to have somebody there who knew something about them.”

The senators take a brief break from such manly things but Democratic Sen. Russell Long of Louisiana cannot allow it: There is more fawning to be done here. “The senator from Michigan commented on raising boys and I am in the position of raising girls, and I think they can look with great admiration toward physical prowess.” Shorter Long: “Little girls can grow up to worship football stars, too.”

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Long then moves on to the only hardball question of the day, asking the nominee to comment on “the role of the Supreme Court in our constitutional form of government.”

White replies that Article III vests the judicial power in the Supreme Court and the lesser courts, and the judicial power is exercised by deciding cases based on the facts, the record, and the law.

Done and done.

That’s pretty much it. The whole ball game, if you will. Smoky, clubby, privileged worship of athletic prowess in lieu of doctrine or law. It’s hard to see why anyone would long for these good old days. Aside from the smoking, we’re still living in them.

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