This week’s biggest focus is the vote on whether Neil Gorsuch should become a member of the Supreme Court filling the vacancy left by the death of Antonin Scalia. Trump has nominated Gorsuch to fill the seat, and now it needs confirmation in the Senate.
One important backdrop to this vote is the Republican majority’s decision in the last Congress not to consider President Obama’s nomination of Merrick Garland to fill that seat, arguing, without precedent, that a vacant seat should not be filled in the last year of a President’s term — that such a vacancy should await the election of a new president.
A second important backdrop is the question of Senate rules. Already more than 41 Senators have announced they will vote against confirming Neil Gorsuch, and that they will also support a filibuster to prevent such a vote. Mitch McConnell, the Republican Senate Majority Leader, has said he will ‘invoke the nuclear option’ if the opponents filibuster: he will ask the Republican majority in the Senate to change the Senate rules to eliminate the possibility of a filibuster. With a filibuster, it would take 60 votes to shut off debate ending the filibuster. Without the filibuster provision, 51 votes (or 50 + Vice President Pence) would suffice. Likely the opponents will persist nonetheless with the filibuster despite McConnell’s threat to change the Senate rules.
These backdrop considerations are important, perhaps determinative. It can be argued that a Senator should vote against Gorsuch simply because of how McConnell and the Republicans treated Merrick Garland’s normination.
But important, too are the substantive reasons to vote no on Gorsuch. The Constitutional process of having a president nominate a justice and then having the Senate vote to confirm encourages a public airing of the reasons to vote yes or no. Gorsuch has been through a confirmation hearing in the Senate Judiciary Committee. What he said in those hearings and what he has done in his years as an attorney and then a judge are now matters of public record. As members of the Senate announce how they will vote, many are taking the occasion to explain why they will vote as they will.
I believe there are substantive reasons to vote no on Gorsuch, reasons that go beyond the partisan and cynical denial of the seat to Merrick Garland.
I am delighted to hear that Maine Senator Angus King will vote no on Gorsuch and will also vote to filibuster the nomination. His reasons are thoughtful and considered. Among the reasons: that Gorsuch’s answers in the confirmation hearing were evasive “and at worst simply not forthcoming;” that he would “favor a return to pre-1935 jurisprudence whereby the the federal government (including Congress) was severely constrained in its ability to address urgent national priorities;” that he values corporate interests (as persons!) over ordinary citizens (workers, women); that he is a “judicial activist;” and that his confirmation has been supported by more than $10 million of advertisements from persons who cloak their identity. (Likely contributors include the Koch brothers and the National Rifle Association.) Said King, again referring to Gorsuch’s evasive answers:
while the hearing may have left many of us uncertain as to Judge Gorsuch’s philosophy and likely conduct on the Court, the sponsors of this campaign are not uncertain at all. They are not spending this huge sum on speculation; they know what they are getting, and that, in itself, raises serious concerns, particularly given the judge’s reluctance to discuss the Citizens United decision.
In Sunday’s New York Times, Emily Bazelon and Eric Posner laid out a more extended critique of Gorsuch’s views of what King is calling “a return to pre-1935 jurisprudence. Again, reasons worth reading.
These are weighty and sufficient considerations justifying a no vote.
Not mentioned in King’s catalog is one further reason lifted up by Sen. Dianne Feinstein of California: Gorsuch’s work on behalf of justifying torture while he worked for the Justice Department under President George W. Bush. Here is the relevant part of the statement from Sen. Feinstein, worth reading in full.
When I asked Judge Gorsuch about his work at the Department of Justice involving the Bush administration’s defense of the use of torture—despite providing relevant documents—Judge Gorsuch said only that, quote, his “memory is what it is, and it isn’t great on this,” and that the position he took on torture, quote, “was the position that the clients were telling [him],” end quote, to take.
Not only did he not answer my question, he raised an additional concern.
I strongly believe that when you work for the government, either as a lawyer or a policymaker, it’s important to comment on the legality of the issue you advise or write. To say “I did what they wanted” is not enough, particularly if the legality is contradicted by both law and treaty.
I also believe it’s important to remember the context. At this point, our country was involved in detaining people indefinitely without charge or trial—leaving them with no rights, no meaningful opportunity to challenge their confinement.
The government had also decided the executive could order the use of certain enhanced-interrogation techniques that included waterboarding, stress positions and sleep deprivation, as well as a host of other techniques which would, and did, result in death and serious debilitation of detainees.
It was April 2004 when the public first learned about the prisoner abuse chronicled in the Abu Ghraib photos. Then in June of 2004, information was leaked to the media that the Department of Justice had issued legal opinions that stated enhanced-interrogation techniques were within the law, unless they inflicted the kind of pain associated with organ failure or death.
Judge Gorsuch reached out to the White House political director in November 2004—approximately six months after these revelations—to say how he wanted to “help the cause” and be a “full-time member of the team.”
Then in March 2005, he reached out to the chairman of the Republican National Committee, who vouched for Gorsuch as a “true loyalist” and “a good, strong conservative.”
Judge Gorsuch ultimately joined the Bush administration in June of ‘05.
Through our examination of his documents, we learned that during his tenure at the Department of Justice, he was involved in efforts to strip detainees of their ability to have habeas cases heard by federal courts, defend and protect the Bush administration’s position on torture and issue an expansive signing statement on the Detainee Treatment Act. These statements were used to highlight parts of the law the administration intended not to follow.
Importantly, we learned that Judge Gorsuch advocated for the Bush administration to issue a broad signing statement. He said it could be used to, and I quote, “help inoculate against the potential of having the administration criticized sometime in the future for not making sufficient changes in interrogation policy in light of the McCain portion of the amendment; this statement clearly, and in a formal way that would be hard to dispute later, puts down a marker to the effect that the view that McCain is best read as essentially codifying existing interrogation techniques.”
Nothing could be farther from the truth.
Judge Gorsuch’s email shows a knowledge of the Bush administration’s position on torture. It also demonstrated he supported efforts to codify existing interrogation policies such as waterboarding and other extreme techniques.
In our written questions, I asked again about his views on enhanced-interrogation techniques. I know something about them. The Intelligence Committee, while I was chairman, has in classified status, over 7,000 pages, with 32,000 footnotes, that document all of this.
I tried to understand his opinions on right and wrong and whether he was at all disturbed by what our government was doing.
Unfortunately, once again, the answers I got were non-responsive.
For example, I asked Judge Gorsuch what he meant when he suggested that a signing statement could “inoculate” the administration if they were later criticized for not making, quote, “sufficient changes to the interrogation policy” based on the McCain amendment.
Judge Gorsuch responded once again that he was, quote, “a lawyer advising a client,” end quote, and that his client—the government—was arguing that the McCain amendment simply codified existing policies. Judge Gorsuch’s defense is that he was only doing what his client wanted him to do.
That’s a Nuremberg-like defense of bad behavior.
We should expect members of the Supreme Court to show that they have a moral as well as a legal compass; that they are prepared to stand up for what is right and to refuse to cooperate with torture or other cruelty. If Gorsuch would “do what his client wanted him to do” on a matter of such importance, how could we trust him as a Supreme Court Justice? And who might he consider as his “client?”