We’ve all heard that it’s better to deal with the devil you know rather than the one you don’t. In the United States, we have a system in which the nine individuals set policy for one of the three branches of government and they don’t have to tell us a damn thing about themselves when applying for the job.
Imagine any other job interview in which you didn’t have to answer the questions thrown your way. What if you could respond to a possible employer with words to the effect of “I don’t want to answer your hypothetical question about what I would do in that situation because I might actually be called upon to answer it when I’m on the job.”
This is the way that the Senate Judiciary Committee has operated with Judge Neil Gorsuch, President Donald Trump’s first nominee for the United States Supreme Court. But this is not a Trumpian – Republican-controlled Senate problem. This is a structural and procedural issue in governance that has existed through most of our history.
The mythology of our judicial system is that the bench is populated with judges who bring no pre-conceived notions to their jobs. Year after year, generation after generation, members of the elite Senate Judiciary Committee has continued to perpetuate this myth.
It’s a charade. Senators may ask Supreme Court nominees what their views are on Roe v Wade, or on affirmative action, or executive privilege, or virtually anything else of importance that might come before the Court. But the history of responses, and now the expectations of responses, is that the nominees are going to stonewall the questions. We learn nothing.
Gorsuch declined to explain his legal views or offer an assessment of past Supreme Court cases. He said he decides disputes based only on the facts and the law. “There’s no such thing as a Republican judge or a Democratic judge,” he asserted. “We just have judges in this country.”
Gorsuch’s assertion that there are no Republican or Democratic judges is laughable when we look at perhaps the most important decision of modern times, Bush v Gore. It was a straight party-line vote, with Bush getting the votes of all five justices appointed by Republican presidents and Gore getting the votes from the four justices appointed by Democrats.
The Members of the Supreme Court tell us how it’s all about the law, not about the people who appear before the court. How can you possibly separate the two, especially when so many laws are poorly crafted, nefariously intended, and the brainchilds of legislators who shame the idea of the democracy that our founding fathers created?
Let’s be for real. The situations that come before the Supreme Court are tricky and they deserve the best kind of deliberation possible. Yes, the justices must take into consideration the laws and historical precedent, but equally important are the particular people involved in the case, and what the expected outcomes of their decision would be in contemporary society. The Justices need to apply a balance of reason and empathy to every case before them.
This is why Supreme Court nominees must not be approved by the Senate Judiciary Committee when they don’t answer questions such as what their views are on abortion, euthanasia, affirmative action, the powers of the presidency, and more. Since the justices are nominated by partisan presidents, we should come to expect that the nominees will hold partisan views. That’s okay. What’s not okay is for us to not know how far to the left or right their views happen to be.
Neil Gorsuch might be the best we can get from Donald Trump. But senators are being asked to vote for him largely sight unseen. Democrats don’t have to oppose him because of the injustice done to Merrick Garland or because we’re about to learn more regarding Trump and Russia. Democrats have the opportunity to set a new standard for approval, one that will apply to their nominees as well. What better time than now to cut the BS and allow Senators and the American people alike to be informed voters. Make Gorsuch sit until he answers the questions.