Jurisprudence

Airless. Insular. Clubby. Smug.

How the grossness of the Gorsuch hearings made the Supreme Court nominee vulnerable to organized resistance.

Neil Gorsuch
Supreme Court nominee judge Neil Gorsuch and his supporters erupt in laughter after using the word “bigly” during the third day of his confirmation hearing on March 22.

Jonathan Ernst/Reuters

Before last week, the confirmation hearings for Judge Neil Gorsuch seemed like the one place Republicans could take shelter from the radioactivity of President Donald Trump. In a landscape littered with third-rate kleptocrats, corruption, and generalized silliness, the Senate’s Gorsuch hearings had the patina of seriousness and dignity and merit and civility. The judge himself was a first-rate Supreme Court nominee who had been coached and vetted with the same precision of every recent presumptive justice (with the exception, perhaps, of Harriet Miers). The whole exercise should have represented a monumental exhale for the Trump administration, a chance to say, “No, this isn’t all a big fat Peter Sellers movie.”

Advertisement

Instead, as the week progressed, the movie got bigger and fatter and stranger. Emboldened, at least in part, by the colossal failure of the GOP to repeal and replace Obamacare and by the persistent stench of the FBI probe into Russian involvement in the presidential election, Senate Democrats now seem willing to gear up for a fight that only a few weeks ago seemed unthinkable. At least in part, the move to filibuster Gorsuch is happening because Democrats are beginning to realize that their base wants to see them fight for something.

Advertisement
Advertisement
Advertisement

But paradoxically, it may also be that the airless, insular, clubby smugness of Senate Republicans made the Gorsuch hearings even more vulnerable to organized resistance. It’s odd. Nothing was really “wrong” with the hearings or the nominee. Yet somehow it all ultimately felt pretty gross. After the unprecedented ill treatment of Judge Merrick Garland, all the pretend outrage and the faux nobility of purpose of the Gorsuch hearings transformed what should have been a Senate high note into a tragicomedy of double-meaning.

Advertisement

The grotesque display of hypocrisy and falsity in Senate Republicans pretending they had been courteous and respectful toward Garland cast an early shadow over the hearings. That same hypocrisy pervades assertions like the one offered by Senate Majority Leader Mitch McConnell last week: “If they don’t find Gorsuch acceptable, are they taking the position the vacancy should never be filled? At all?” Oh, senator. Seriously? Remember Ted Cruz and Richard Burr promising to keep the seat open for four years, way back before the election? You can start to declaim on double standards again, well, never. And the performance of daily wounded outrage that the nominee was suffering grievous personal insult at the hands of Democratic interlocutors and tormentors? See “Seriously?” above.

Advertisement
Advertisement

Add to the mix the strange performance of the nominee himself, who came into the hearings with a media and public willing to give him the benefit of the doubt and left us with the impression that he was a good deal more prickly than he needed to be, and a good deal more coached and canned than he wanted to be. A man with a substantial and creditable judicial record walked away from the hearing room having led many of us watching with a greater appreciation of the authenticity and likability of John Roberts, who really was extraordinarily affable and warm throughout his hearings in 2005. Partly it was the sense of great privilege and entitlement that was on display: the strange contrast of Gorsuch’s pride that his daughters were “double-black-diamond skiers” and his seeming disregard for the plight of a frozen trucker.

Advertisement
Advertisement

But all the hypercivility and clubbiness—the demand that respect be mechanically afforded—rankled all the more because of the pervasive assumption that, as a federal appellate judge with impeccable credentials, Gorsuch was entitled to be treated like a war hero. The presumption echoed the ways in which former Sen. Jeff Sessions demanded magical Senate deference and how Sen. Elizabeth Warren was put in the naughty chair for refusing to honor him. Deference and civility are earned by government, not demanded. There was, eventually, something powerfully malignant in the proposition that having blown up every last norm of decency and fair play in the U.S. Senate, this last remaining norm—of unquestioning reverent respect—was the only one that truly matters.

Advertisement
Advertisement

The final piece of the privilege puzzle that snapped into place after the Gorsuch hearings still feels somewhat inchoate. Senate Democrats attempted to tie Judge Gorsuch to a long progressive narrative of being callous and mechanistic—specifically, to claims that he didn’t see it as his responsibility to look out for the “little guy.” This line of attack led to some interesting exchanges, including one with Rhode Island Sen. Sheldon Whitehouse about the trend of the Roberts Court to privilege corporate interests and dark money over democratic processes. Minnesota Sen. Al Franken similarly grazed Gorsuch with claims that the judge had failed to protect vulnerable plaintiffs—including the aforementioned trucker, who was fired for refusing to freeze to death in his broken vehicle, as well as an autistic student who received inadequate instruction and services from his public school.

Advertisement

In one sense, these attacks were ably parried by Gorsuch’s reply that these were just two cases among thousands, and that he had ruled for the “little guy” in myriad appeals brought by workers and prisoners and pro se defendants. In the larger sense, Gorsuch used his claims to judicial modesty and his deference to the political branches to argue that judges merely interpret the law, and Congress makes them. He repeated his mantra, in various formulations over multiple days, that judges are neutral and have no preconceived notions: “Putting on a robe reminds us that it’s time to lose our egos and open our minds. … Ours is a judiciary of honest black polyester.”

Advertisement
Advertisement

It is this final claim that may not survive the smug self-certainty of last week’s Senate process. Through no fault of his own, news of the Gorsuch hearings was overshadowed last week both by claims of possible collusion between the Trump campaign and Russia, and by the defeat of Trump’s health care reform efforts. It wasn’t just that the twin stories dragged down Trump’s polling numbers, or that both served as reminders that Trump’s disregard for the rule of law is matched only by his cruelty toward the weakest and the poorest. It was that Gorsuch had the misfortune of facing confirmation as a gold-standard movement conservative at precisely the moment in which Trump himself was exuberantly slashing protections for the hungry, the uninsured, the working poor, public television and the environment, Meals on Wheels, students, and pregnant women.

Advertisement

To put it bluntly, just about every “little guy” in America was being sucker-punched by government in some fashion last week at precisely the moment Gorsuch was repeatedly affirming that if someone is going to protect the little guy in America it needs to be Congress and the president, but most certainly not judges. I wouldn’t want to be the judge pledging at this moment in history that there is no room whatsoever for judges to step in as the entire social safety net is slashed. Call it humility or minimalism. It reads as Paul Ryan–grade granny-starving.

Advertisement
Advertisement

Maybe it doesn’t matter. Maybe the judge’s fist bumps and athletic feats glossed over the fact that his judicial record shows that everything the Roberts Court has been systemically dismantling—from campaign finance reform to the Voting Rights Act to the contraception mandate of the Affordable Care Act to the federal laws that protect workers, unions, and handicapped kids—doesn’t actually matter. And maybe it didn’t matter that amid all the backslapping, dignified privilege of a Senate hearing, the idea that judges are too lofty and oracular to weigh in on a government bent on dismantling state protections for the weakest sounded less in the key of neutral cerebral umpire than in the key of a careless ski instructor.

Advertisement
Advertisement

This is not about moral fault. This is not about Judge Gorsuch’s heart. Gorsuch came to the Senate with a fully realized worldview on the role of the courts and the law, and while I would dispute that it is truly “originalist” I would take him at his word that he is a judicial conservative. We can respect him as a thinker while taking seriously the implications of his philosophy and record.

But it is clear that something was way off last week in the Senate, and only part of it had to do with the fact that Barack Obama’s nominee to the Supreme Court was not having a hearing and nobody—including Neil Gorsuch—could offer a coherent explanation as to why. What was off was that Senate Republicans tried to pretend that the judicial branch, alone among the American carnage of government institutions, is worthy of sonorous and unquestioning reverence. In trying to make that case, though, most of these same senators managed to seem even sillier, more hypocritical, and more out of touch with what’s really happening in America than they seemed before.

Advertisement