The U.S. Constitution gives the president power to appoint Supreme Court justices with the “advice and consent of the Senate.” This week, the Senate will begin deliberations on the nomination of Neil Gorsuch, currently a judge serving on the U.S. Court of Appeals for the 10th Circuit, to fill the position on the Supreme Court created by the untimely death of Justice Antonin Scalia.
The confirmation power is important and real. The first nominee to be rejected was John Rutledge, whose name was put forward by George Washington. That rejection has not been taken by the Senate as a guide for common practice. Only 12 nominees have been rejected, compared to 124 who have been confirmed in the court’s history.
Of the eight sitting justices, three were confirmed unanimously or almost unanimously, and all but two by nearly two-thirds of the Senate. The numbers: Chief Justice John Roberts (78-22), Justice Anthony Kennedy (97-0), Justice Clarence Thomas (52-48), Justice Ruth Bader Ginsburg (96-3), Justice Stephen Breyer (87-9), Justice Samuel Alito (58-42), Justice Sonia Sotomayor (68-31), Justice Elena Kagan (63-37).
What would lead the Senate to reject a Supreme Court nomination? Obviously, scandalous behavior, manifest lack of qualifications, or criminal activity would sink a nominee’s chance of confirmation. Gorsuch, a respected federal appeals judge, does not seem to have any of these liabilities. Some rejected nominees did not seem to either. Their nominations were rejected for more ideological reasons, which brings us to this week’s hearings.
There seem to be two competing ideas about what would justify rejecting a nominee.
A results-oriented approach would focus on the expected vote of the nominee on issues of importance to the senators. Under this approach, the hearings would focus on how the nominee would rule in cases involving abortion, business interests, religious liberty, environmental regulation, etc. This approach is exemplified by Rep. Nancy Pelosi’s hyperbolic claim that “if you breathe air, drink water, eat food, take medicine, or in any other way interact with the courts,” Gorsuch’s nomination “is a very bad decision.” In this view, if you think a judge will rule against the interests you favor, you would be justified in rejecting that judge’s nomination.
Another view, described by Neal Katyal, a former solicitor general in the Obama administration, focuses on the oath justices take to “administer justice without respect to persons, and do equal right to the poor and to the rich.” In this view, a nominee’s willingness to subordinate his or her own views of what the law should be to what the law actually says is a pre-eminent qualification for service.
This approach is consistent with the fact that the United States is governed by a written Constitution. That simple fact makes clear that the words of the law, as written, are intended to be controlling. A good judge, then, will be most concerned with applying the existing law to the variety of circumstances that arise in the lawsuits that come before him or her — not with ensuring that certain viewpoints are given legal effect regardless of the text of the relevant laws.
The good news is that Gorsuch is committed to this latter approach. In remarks praising Scalia, shortly after the justice’s death, Gorsuch said that “perhaps the great project of Justice Scalia’s career was to remind us of the differences between judges and legislators.” Gorsuch outlined his own thinking on these questions. He said judges should not do what legislators should — “appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future.” Rather, “judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be — not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.”
As Utahns watch and read about the hearings on Gorsuch’s nomination, they can best understand the questions and testimony in the light of these contrasting understandings of the role of judges.
Those who believe that faithful application of the law is the most important judicial qualification will likely be pleased with what they learn about Gorsuch over the process of the hearings.
William C. Duncan, J.D., is a senior fellow at Sutherland Institute.