In the original British “House of Cards,” the machiavellian MP Francis Urquhart, played to sly and silken perfection by Ian Richardson, replies to press queries by saying, “You might very well think that. I couldn’t possibly comment.” Those in the know realize he has confirmed their suspicion that he does think that, but without leaving any fingerprints.
Neil Gorsuch, in his Supreme Court confirmation testimony, played a similar game. He did not confirm or deny anything, but no one paying attention had any doubt exactly what sort of justice he will be. This is the nature of today’s kabuki confirmation process.
Do men and women recommended for a seat on the highest court in the land really have no opinions, strong feelings, zealously-held theories on the law and how it should be interpreted? If so, they are unfit to be considered for the job. But, of course, they are really just afraid that any evidence of sentience, let alone humanity, might doom their chances, so they behave like automatons or caricatures.
This is obviously true since the moment they have finished running the gantlet and assume their seat on the court they are reanimated with all their old vigor, prejudices and convictions, which then appear in their opinions for the next quarter century. And despite the Gorsuch dumbshow, he has left a voluminous trail of opinions, lectures, learned articles and speeches to indicate exactly what he believes.
He’s Antonin Scalia masquerading as Andy Hardy. His golly, gosh, geewillikers exclamations didn’t disguise the fact that he’s for minimalist legal intervention in restraint of corporate or state power, but less delicate about intrusions on the rights of ordinary citizens whose lives are often the collateral damage of originalist bombshells.
Like the Congress that confirms and the presidents who select them, Supreme Court Justices have become more extreme in the last forty years, particularly on the right as they have embraced the absurd doctrine of strict constructionism or originalism or textualism which argues that all constitutional issues should be decided as they were meant to be by the drafters of that document, if only they could speak from the grave.
This is now a multigenerational backlash against the New Deal and Warren Courts that were seen by aggrieved conservatives to be legislating from the bench and not respecting the original intent. They saw these Supremes committing atrocities like giving black people equal justice under law, women the right to choose what happens to their private parts, and defendants the right not to be railroaded.
But the conservative Justices this counter-reformation has produced have proven to be human, all too human. They have a record of being originalists when it suits their purposes and more latitudinarian when it doesn’t. And a lot of originalism is just plain silly. Do we really know what historical persons would have done if confronted with our radically different world? We do not.
The text of the Bible says you should not covet your neighbor’s ox or ass. Does that mean you are free to covet his John Deere tractor since internal combustion farm equipment is nowhere mentioned by the author of the tablets of Sinai? The road to hell is paved with that sort of logic.
Furthermore, as early as John Marshall the court was interpreting the Constitution in ways not intended by its authors. How do we know? Because they were still around to complain about it. But they let his innovations stand. Apparently even the original authors weren’t originalists.
But, none of these quibbles matter. Gorsuch was smart enough not to admit what he will do when he gets to the court and will almost certainly be confirmed. As far as I know, his questioners did not ask him to opine on the constitutionality of the route by which he became a nominee. But since he answered no questions, he probably wouldn’t have answered that one either.
Mitch McConnell declared that Supreme Court nominations in the last year of black, Democratic presidents (like that of Merrick Garland) are not valid and should be ignored until a white Republican is in the White House. Nothing like that was tried when Washington, Adams, Jefferson, Madison and the rest of the originators of the Constitution were around to scream bloody murder.
But Gorsuch must think such an usurpation passes constitutional muster or he would surely have refused to profit by the act. At least if he is really the character he played at his hearings, which was Henry Fonda as “Young Abe Lincoln.”
Since we have now apparently agreed that any chicanery in staffing the Supreme Court is de facto Constitutional, Democrats might want to declare that henceforth nominations by presidents under FBI investigation for stealing elections are invalid and refuse to seat Gorsuch and anyone else Trump choses. But it won’t happen because the Supreme Court, like the rest of the government, is not about truth, justice and the American Way but about brute force.
The tough and wily Justice William Brennan used to gather all his new law clerks each year and ask them with a twinkle in his eye, “What is the most important rule in constitutional law?” Terrified of being found wanting, they would think hard about everything they’d learned in the finest law schools in the land. “Stare decisis?” “Separation of powers?” “Freedom of speech?”
“No,” Brennan would tell them, and hold up his hand with his fingers spread out. “The Rule of Five. Get five votes, your side wins. Get four, you lose.” McConnell had the votes and Garland didn’t get the seat. If Gorsuch gets enough votes, another originalist will wear the robe. Here endeth the lesson.