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Commentary & Opinion

Brad Hays: Missing The Water

Judicial confirmation hearings tend to be highly boring affairs.  Ever since Judge Bork chose to mix it up with the Senate Judiciary Committee during his confirmation hearing for a seat on the United States Supreme Court and, got “borked” for his effort, nominees have been loath to say anything that might give the opposition the necessary leverage to stop their confirmation.  Now, nominees come loaded with platitudes about calling the legal equivalent of “balls and strikes” or refusing to “prejudge cases” by having substantive discussion about different areas of the law.  In other words, you get hours of senators asking either important questions that go unanswered or asking inane questions that are followed with equally inane answers.  For this reason, I, someone who teaches and writes about courts and constitutional politics for a living, tend to avoid watching confirmation hearings. 

Yet, out of some kind of professional obligation, I was listening to the hearing when (Eureka!) Judge Neil Gorsuch actually said something interesting.  In attempting to answer a question that had been posed at least ten times previously, Judge Gorsuch tried a new, literary approach. To demonstrate how he as a judge treated all parties—meaning “big guys” and “little guys” (yet another inanity)—the same, Gorsuch declared that the American legal principle of equality was omniscient.  Here, he cited David Foster Wallace’s famous essay entitled This is Water.  In the essay, Wallace tells the story of two young fish swimming past an old fish, at which point, the old fish asks, “Morning, boys. How’s the water?”  The two young fish swim on a bit until one of the young fish turns to the other and asks, “What the hell is water?”  Wallace’s point was that the most obvious realities are so ubiquitous that they are actually hard to see.  Gorsuch’s point was that the law’s radical equality is so ubiquitous that we don’t appreciate it when we talk about law.  In other words, law’s influence is so powerful in judging that we overlook the way it disciplines judges to produce outcomes that are independent of how rich or poor someone is.

There are several things striking about Gorsuch citing Wallace.  Judges cite works of literature sporadically so this wasn’t unique per se.  Yet, when judges cite fiction, they tend to cite the likes of Shakespeare, Kafka, Orwell, Milton, and others from the canon of long dead literary greats.  David Foster Wallace may eventually be placed among those writers but only those who inhabit college English departments or frequent book blogs put him there now.  More curiously, Wallace, to the extent he has entered popular culture, is closely associated with radical compassion.  Wallace’s This Is Water has become something of a self-help essay, urging one to do the hard work of empathizing with the plight of others.  And, of course, empathy as a judicial principle brought something close to uniform Republican condemnation of Justice Sotomayor during her confirmation hearings.  So, a judicial conservative choosing to cite Wallace was attention grabbing.

But, as I reflected on Gorsuch’s use of Wallace, I realized that Gorsuch’s reading was exactly wrong.  Gorsuch was making the observation that law is everywhere and that the law is informed with “the most radical guarantee…in the history of human law”: protecting all people equally.  This is, of course, a basic tenant of the rule of law: no person above the law, no person beneath it.  But, this understanding of American law is, to borrow a different phrase from This Is Water, a banal platitude and one in contrast to the realities of our justice system.  Wallace’s essay challenges us not to focus on the things that we all had in common, but those things that made the human experience different.  Such an exercise requires us to put ourselves in the position of others, albeit imperfectly.  To craft narratives of other people’s lives that helped us understand why their motivations and actions, which initially seem repulsive, are actually filled with meaning.  By understand difference, we choose to contemplate their humanity and, hopefully, reveal our compassion for the lives and situations of others.

If Gorsuch thinks that the law treats all equally, then he has failed to take up what Wallace urged: putting himself in the position of someone who is not a privileged white male.  He has failed to put himself in the position of an impoverished woman facing an eviction.  He has failed to put himself in the position of a young black man detained by the police after being picked up off a city street.  He has failed to put himself in the positon of someone unemployed who, upon being offered a job, is required to sign an employment contract that strips them of their right to access the courts if wrongfully terminated.  He has failed to put himself in the position of an elderly citizen who shows up to vote only to be told they must produce a driver’s license that they surrendered the year before. 

In other words, Gorsuch has made a different kind of choice, albeit one that is highly familiar to most Americans when they think about law.  Gorsuch has put himself in the positon of Lady Justice, blindfolded to the differences in our society that make legal institutions vehicles for advantage.  He has put himself in the position of a literary icon like Atticus Finch, someone who can sincerely call the courts “the great leveler” even while defending a wrongly accused black man in the Jim Crow South.  David Foster Wallace argued that the things that we are automatically certain about tend to be wrong and deluded.  Choosing to move past our own experience, to the experience of others, is hard but it is also the path to the “capital- T Truth”.  Wallace tells the reader that this is unimaginably hard to do.  It is hard to recognize difference.  It is hard to recognize inequality.  It is hard to see the law for its failings.  It is hard to see the water.    Judge Gorsuch knows of water, I hope he will learn to see it.

Bradley D. Hays is an associate professor of political science at Union College.

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