Nine questions for Judge Gorsuch
Today marks the moment when supreme optimists believe they will find out in great detail how Supreme Court nominee Neil Gorsuch thinks about the law.
But if Gorsuch, a federal appeals judge in Colorado, follows the path of his predecessors, he’ll sidestep and slip artfully away from attempts by the Senate Judiciary Committee to pin him down on the important legal issues of the day.
Every nominee in recent memory, conservative or liberal, has taken the “judicial fifth,” refusing to answer meaningful questions on the grounds that it would violate the judges’ code of conduct. True, the code admonishes against speaking publicly about a “matter pending or impending” before the court. Yet that still leaves a lot of room for answers about legal questions that aren’t in litigation or poised to be.
There’s nothing to stop a judge from talking about his previous cases, his legal thinking or past Supreme Court rulings. In that spirit, here are some questions that the senators ought to ask and that Gorsuch ought to answer:
Q.
Judge Gorsuch, you would not be here if Senate Republicans hadn’t obstructed Merrick Garland, the eminently qualified federal judge that President Obama nominated a year ago to succeed the late Antonin Scalia. Did Judge Garland get a raw deal? Q. It’s unheard of in modern times for a president to fail to comply with an order by a federal judge. If a president did not comply, what should happen next? Should the Supreme Court always have the last word on what is and isn’t constitutional?
Q.
In your 2006 book on assisted suicide and euthanasia, you wrote that human life is inviolable and that the “intentional taking of human life by private persons is always wrong.” Do you believe that this inviolability applies to the unborn, and at what stage of development would it apply to a fetus? How does your thinking on this affect your view of the 1973 Roe v. Wade decision that guaranteed the right to an abortion?
Q.
In a 2005 National Review piece, you wrote that the political left has an “overweening addic- tion” to using courts, rather than the ballot box, to bring about social change “on everything from gay marriage to assisted suicide.” You called this bad for the country and the judiciary. Sen. Richard Durbin, D-Ill., said that during your recent visits to senators, you told him the article was one of the “biggest mistakes” you “ever made.” Why was it a mistake?
Q.
You have rarely ruled in gun rights cases, but the Supreme Court held in 2008 and 2010 that there is a right to keep handguns in the home for self-defense. In the 2008 decision, Justice Scalia, one of your legal idols, wrote that the court was not upholding “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Are there some limits on gun ownership that could pass constitutional muster? If so, what are those limits?
Q.
The Supreme Court in recent years, pointedly in Citizens United, has opened the floodgates to political spending by corporations and unions, giving special interests an outsized role in electing Congress and the president. In a 2014 concurring opinion on the 10th Circuit Court of Appeals, you suggested that the right to contribute to campaigns is as fundamental a constitutional freedom as free speech or free association. Do you believe that any limits on what individuals can give to candidates or parties could pass constitutional muster? Q. In cases before the 10th Circuit, you’ve often taken a narrow view of how far schools or employers must go to accommodate disabled children or even a frozen trucker with a broken-down trailer. Can you describe a case you’ve ruled on where you held for a worker or a disabled person?
Q.
In the Hobby Lobby case, the Supreme Court narrowly upheld the right of deeply religious business owners not to be forced by the government to violate their beliefs, upholding a 10th Circuit ruling you joined and, in a separate opinion, expanded on. One dissenting justice wrote that the ruling could unleash “havoc,” if more individuals and businesses refuse to obey laws that apply to everybody. Where do you believe the limits lie on religious freedom?
Q.
Based on your work in the Justice Department during the Bush administration on interrogation techniques used in the war on terror, do you believe that what was called “enhanced interrogation” on detainees ever works, or is it ever legal?
This just scratches the surface of questions senators should ask Gorsuch, who, at 49, could influence the nation’s laws for more than three decades. Like all nominees, the judge deserves a fair hearing to determine whether he falls within the broad judicial mainstream and has a healthy respect for precedent. That standard will be impossible to assess if the witness ducks or parries every question he is asked.