Much of the second day of Neil Gorsuch’s confirmation hearings involved the efforts of Democratic senators to root out the nominee’s views on highly controversial topics that the Supreme Court might face at some point in the future, near or far. Gorsuch generally parried these efforts by retreating into that misty territory where judges, laws, and facts come together to define specific cases — and where it would be impossible and inappropriate for him to anticipate where he or any other jurist might come out. It was the judicial equivalent of rope-a-dope.
And so he could not tell us how heavy the weight of precedent might rest on a challenge to the right to an abortion as defined in Roe v. Wade — much less how he might lean in the ultimate disposition of a challenge to that precedent. Nor could he tell us to what extent the president’s national security powers might preclude due-process challenges to immigration policies — a case the Trump administration is hoping Gorsuch might be confirmed in time to help decide at the Supreme Court. Nor could he be induced to embrace much in the way of any strong biases, or any particular school of thought on the Constitution, other than the humbling of every judge before the law and only the law, making each case a sort of mystical experience to which mere laypeople — even U.S. senators — were not privy.
The effort to pin down Gorsuch by his own best known opinions as an appellate judge were equally vain. Did he, as Al Franken insisted, notoriously and callously side with a large corporation against “the little guy” in the so-called Frozen Trucker Case (TransAm Trucking v. Administrative Review Board), an example of his refusal to defer to agency interpretations of statutes? Well, it was a crying shame that Congress didn’t write the applicable law differently! Even more obviously, when Chris Coons spent nearly a half-hour painstakingly exposing the radicalism of Gorsuch’s concurring Tenth Circuit opinion in Hobby Lobby v. Sebelius —the opinion that made Gorsuch the very favorite SCOTUS prospect for conservative Christian activists — the judge blandly shifted responsibility for his jurisprudence to the Legislative branch, pointing out the opportunities Congress had to preclude his interpretation of the Religious Freedom Restoration Act. If Congress didn’t want for-profit corporations to enjoy the religious freedom accorded to “natural persons,” said Gorsuch, they should have defined “person” more strictly in RFRA!
Gorsuch’s refusal to lend much significance to his own thinking — or to those in the political branches of government, including Donald Trump, who have brought him to the most powerful position in the judiciary — is an effective way to frustrate inquisitors from the opposition party in a confirmation hearing. But it leads one eventually to the question of why the vast power of the conservative movement, through agents (notably the Federalist Society, which has played a central role in Trump’s SCOTUS vetting operation) whose entire purpose is to ensure an ideologically conservative judiciary, have decided placing this man on the Supreme Court is crucially important. It is no great exaggeration to say, moreover, that Donald Trump’s relationship with the conservative movement depends on the accuracy of his assessment that Gorsuch will help overturn the right to abortion, exempt religious conservatives from compliance with anti-discrimination laws, and otherwise get out of the way of a conservative administration.
So the Neil Gorsuch that emerged from the most rigorous vetting process of any SCOTUS nominee in history is not the evasive and cleverly jesuitical nominee who spent a very long day denying there was anything distinctive about his views on the law and the Constitution. Democrats will continue to flail away at the granite edifice of his pleasant diffidence until the moment he is confirmed. And then the mystery will finally begin to fall away.
