Any members of the Senate Judiciary Committee interested in SCOTUS nominee Neil Gorsuch’s judicial and constitutional philosophy will find a vital source of information in Natural Law and Natural Rights by John Finnis, Professor of Law and Legal Philosophy at Oxford University.
I struggled with these pages to satisfy my curiosity, but my effort has little relevance to the debate about the nominee’s fitness for the United States Supreme Court. No senator has read the volume, nor will they. You don’t need constitutional expertise to sit on the Senate Judiciary Committee, but you do need expertise in political calculations to get elected to the Senate in the first place. We all know that the choice of Justice Scalia’s replacement is the hottest political issue at this time. So, we can all infer that most senators have already made up their minds.
On March 10, around 7,000 pages of documents relating to Gorsuch were uploaded to the Judiciary Committee’s website from the Bush Library. Earlier in the week, the Justice Department delivered 144,000 pages. A White House spokesman claims that more than 220,000 pages on Gorsuch have been made available to the committee. The spokesman reckons this makes the Gorsuch nomination “one of the most transparent processes in nomination history.” That sounds right. Such an alpine range of documentation suggests incredible diligence by the committee’s membership.
In reality, a white-out blizzard of paper can’t possibly produce transparency as the word is commonly understood. Committee staffers, members of interested advocacy groups, everyone with access, will be sifting madly through those documents in the few days available. Democrats will look for material with which to attack the nominee. Republicans will hunt for the same kind of evidence to prepare any necessary defense.
An article headlined “Oxford Scholar Who Was Mentor to Neil Gorsuch Compared Gay Sex to Bestiality?” may become more consequential to the nomination debate than any actual document obtained by the committee. There’s no convincing evidence that the left-lurching journalistic team at The Guardian actually read Professor Finnis’ book. No need for so much work. This single radioactive sentence does the job for them: “Before he was Donald Trump’s nominee to fill the vacancy on the supreme court, Judge Neil Gorsuch was the protege of a renowned Catholic scholar at Oxford University who has compared same-sex relations to bestiality and described abortion as the ‘approved killing of vulnerable innocent human beings”.
The reporters could find no statement made by Judge Gorsuch himself about abortion or gay marriage. There’s no discussion about abortion or gay marriage in Finnis’ book. Those words don’t even appear in its index. The article is an exercise in guilt by association, a thing all good liberals once claimed to despise as a weapon of McCarthyism. It looks a lot less despicable to them when it’s the only thing they have.
Those working against President Trump’s nominee will make a show of trying to get a statement on the abortion and gay marriage decisions. They aren’t going to get any such things. Let Ruth Bader Ginsburg explain why: “It is inappropriate, in my judgment, to seek from any nominee for judicial office assurance on how that individual would rule in a future case. That judgment was shared by those involved in the process of selecting me. No such person discussed with me any specific case, legal issue or question in a manner that could reasonably be interpreted as seeking any express or implied assurances concerning my position on such case, issue, or question.”
This was from her 1993 letter to Sen. Joe Biden prior to her confirmation by a vote of 96 to 3. Canon 5 of the American Bar Association’s Model Code of Judicial Conduct prohibits judicial candidates from, “with respect to cases, controversies, or issues that are likely to come before the court, mak[ing] pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office.”
Every Justice appointed since 1993 has followed Canon 5 and the Ginsburg precedent. There are no grounds for demanding that Gorsuch reject this custom. The demand will, nevertheless, be made. And some opponents will condemn him for refusing to answer their questions.
Hints that a Justice Gorsuch will revoke Roe v. Wade and return the gay marriage issue to the legislatures and voters is especially significant for Maine. Susan Collins, as an extreme moderate, is known as a Republican swing vote. Angus King, devoted as he is to the thoughtful Independent charade, needs plausible cover for voting with the Democrats.
A member of Senator Collins’s staff recently told me that her offices have been besieged by Gorsuch opponents for weeks. They show up in crowds outside her offices in Bangor and Lewiston. In some instances they show up repeatedly. They call repeatedly. They persistently demand she hold a public “town hall” meeting. Collins persistently declines on grounds that she prefers quiet and serious one-on-one or small group meetings.
On the other side the Maine Republican Party is asking its members to appeal to Senator King by telephone and letter to vote for the Republican nominee.
The actors in these dramas are not primarily concerned with winning the argument by logic and evidence. The decisive consideration for all concerned is the balance of political power. The left-lurchers want the United States Supreme Court to function as a third political branch, dominated by liberal activists who either rubber-stamp legislation expanding government power or enact novel liberal policies and laws on their own. Conservatives want a Court that acts as a barrier to expansions of governmental power.
When we exclude concerns about political power from this debate, we play a false and vacuous game.