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Stephen Gottlieb: Gorsuch And Legal Tyranny

The Gorsuch hearings frustrated me. It’s mostly theatre. The Senators wanted to make sure we understand the stakes for the issues they care about. Fine. But the lawyer and interviewer in me want to sink the knife deeper.

Senators kept asking for his opinion, or what would he do, or how he understands various provisions of law. Predictably he wouldn’t answer.

I would ask whether his mind is blank on each issue?

Justice Scalia quoted the late Chief Justice Rehnquist, saying:

Since most Justices come to this bench no earlier than their middle years, it would be unusual if they had not by that time formulated at least some tentative notions that would influence them in their interpretation of the sweeping clauses of the Constitution and their interaction with one another.

Scalia continued:

Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so.

And again he quoted Rehnquist:

Proof that a Justice's mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.

In other words there is a great deal in Judge Gorsuch’s mind that he doesn’t want us to know. It has absolutely nothing to do with judicial ethics. Staying silent doesn’t make him a more open-minded judge; only less candid.

Alternatively I would prefer a variant of Senator Joe McCarthy’s trope from the 50s, “Do you now or have you ever said or believed….?” That at least gives ground to discover whether he is truthful. It might not change the course of history, given the limited time, but it might bring witnesses in from the hills, so to speak.

Gorsuch was asked whether he made any promises to the president. I’d like to hear about the conversation with the president or his team. Just what allows the president to express confidence about what Gorsuch will do about abortion?

But let’s go for the jugular. Gorsuch kept saying he goes with the words of the rule regardless of his sympathies. But he also claims that the words of the law should be understood without regard to their consequences, without regard to how people behave in the real world. That is absolute nonsense. He is surely aware that we don’t and shouldn’t do law that way.

Let me give you one of the examples we discuss with our students in law school. You hire a baby-sitter and tell him or her that your child is ill and shouldn’t go outside. But, for whatever reason, a fire breaks out and the baby-sitter runs out leaving your sick child to die inside. Were those your instructions? To leave your child in the burning building? Did leaving out a detailed set of caveats about when to ignore your literal instructions imply that you wanted your child to burn? We all use language that way, assuming lots of obvious caveats that we would plainly insert if we thought it necessary, but believe such a detailed list would insult the intelligence of the people we’re talking with. It’s normal to incorporate such cultural assumptions about proper and humane behavior in our meaning.

Law without humanity is tyranny, rewarding terrible behavior and punishing honorable behavior with disastrous consequences as Gorsuch did with the truck driver who would have died if he’d obeyed instructions. Gorsuch repeatedly blamed his own outrageous interpretations on the law. I could describe that as slandering the law, except that Gorsuch will have the power to make it so.

[1] Republican Party v. White, 536 U.S. 765, 777-78 (2002).

Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Unfit for Democracy: The Roberts Court and the Breakdown of American Politics. He has served on the Board of the New York Civil Liberties Union, and in the US Peace Corps in Iran. Steve maintains a blog: constitutionalismanddemocracy.wordpress.com

The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.

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