W.J. Astore
What should Democrats do about Neil Gorsuch? They should filibuster.
The reason is obvious: Merrick Garland, President Obama’s eminently qualified and moderate nominee for the Supreme Court, never even got a hearing from Republicans. Unlike obstructionist Republicans, the official party of no, a party that with a clear majority can’t even pass its own wealth/health care plan, the Democrats gave Gorsuch a fair hearing. It’s now time to oppose him. To do anything else would be an admission of gutlessness.
Democrats, at the risk of stating the obvious: Republicans are not going to respect your sense of fair play, your bipartisanship, your willingness to compromise. Just keep one image in mind: Republicans are Lucy holding the football, and you are Charlie Brown. No matter how many times Lucy tells you she’s going to let you kick the ball, she’s always going to pull it away, betraying her promise while making snide comments about your gullibility.
There’s another reason not to vote for Gorsuch: the man lacks compassion. Sure, he’s urbane, intelligent, and well-read. He knows his way around the law. But he seems to believe humans were made for the law, rather than the law being made for and by us.
The higher a judge rises in our system of justice, the higher the premium on compassion. The law is not a bunch of words and statutes and rulings to be adjudicated soullessly while citing “original intent,” whatever that means. In certain rulings, like the “frozen trucker” case, Gorsuch came across as soulless, allowing strict interpretations to trump common humanity.
I’m a historian, not a lawyer, so my view of the law is somewhat different from the experts. I see it as an artifact of history, a fluid substance, an imperfect product of imperfect humans. That doesn’t mean it’s not vitally important; that it doesn’t deserve our respect and our protection. But, again, the law exists for us: to uphold life, liberty, and the pursuit of happiness. The law shouldn’t exist solely for the powerful, for corporations, for the government, for the richest.
Justice shouldn’t be blind. Justice requires judges to use all their senses, and not just those, but their hearts and souls as well. It’s not enough for a judge to be learned; he or she should have empathy, a strong sense of fairness, and, again, compassion.
Gorsuch is a fan of Dickens. While listening to him, it was difficult for me to tell whether he was Scrooge before his moral awakening, or Scrooge after it. He came across more as the Scrooge of “Are there no prisons, no workhouses,” rather than the Scrooge who embraces charity and who freely gives to those in need.
So, Democrats, your direction should be clear: In the name of Merrick Garland, and in the cause of compassion, resist Gorsuch. For even if you naively choose to support him, in the name of highminded fairness, Lucy will always be there to pull the football away, laughing all the while at your spineless gullibility.
Bracing Views 
Professor I have to disagree. We have lawmakers that if the citizenry so choose can pass laws that deal with society’s ills and foibles using a heavy hand, i.e., prohibition or whatever the popular sin or failing that society deems cancerous to good order. The same logic the GOP used to note consider Garland, the DEMS used in the final year of the outgoing president. I don’t think it is clear that Gorsuch is not compassionate, but to characterize him as such implies that he should use emotion as a means for interpreting law. We see plenty of emotion in legislative politics and that is where it should stay. Judges should rule according to law and precedent. We have seen over this country’s history what happens when judges go beyond their role of balancing the scales of justice.
Listen to the words of Sen Sasse
https://www.c-span.org/video/?c4662013/senator-ben-sasse-gorsuch-confirmation-hearing-opening
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I agree that judges should rule according to law and precedent. But judges should also judge — and in that process I don’t think it’s possible or even desirable to exclude all emotion, as if judges are Vulcans operating on pure logic.
I believe Gorsuch said he’s not an algorithm or not robotic, but there’s something to the way he presented himself, and a few of his prior decisions, that suggests a lack of compassion for those who are weak and vulnerable.
The weakest and most vulnerable need the law the most. Does Gorsuch have their back? I didn’t see much evidence of that at his hearing.
Again, the law is not just an intellectual exercise in discovering the original intent of the words of the Founders. The law is about us — about creating and nurturing a society that’s civil, that’s fair, that’s ethical and moral and decent.
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Let me respond specifically to Senator Sasse’s comments. I agree judges should not be super-legislators. I agree judges should be faithful, dispassionate, objective, and fair.
But I’m no Burkean. I reject the notion of the “cold neutrality of an impartial judge.” Impartial — yes. But “cold neutrality”? Such words leave me cold.
Give me the warmth of a judge who believes in neutrality but who nevertheless understands the human condition. Who is passionate about life even as she is dispassionate about the law. Who is above all else compassionate in her treatment of the men and women who come before the court.
Yes, the scales of justice should not be tipped by a judge. But a judge should not be blind to the reality that the mighty and powerful are always seeking to tip those scales in their favor, and that they often succeed.
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Thank you for your great blog, and for giving me a link to read the trucker opinion.
The issue in the case was whether the trucker was protected by a whistleblower statute that protected drivers from retaliation for “refusal to operate” based on concern for injury to self or the public. The administrative agency said, and the majority opinion agreed, that interpreting “refusal to operate” to include refusing for safety reasons to operate as ordered was a reasonable reading of the statute that furthered the purpose of the statute.
All this is to say that majority opinion did not require any particular compassion, just common sense application of the law. The trucker refused to stay in the truck as ordered for reasonable concern for his own safety, and was fired for that reason.
Gorsuch made the argument that the trucker did not “refuse to operate,” but operated the vehicle by driving away. This goes beyond a narrow reading – it is rank sophism. The company wanted him to operate the vehicle by staying with the vehicle. He refused by driving away, out of perfectly reasonable concern for his life. Gorsuch did not just lack compassion. He was actively hostile to the employee and the regulatory state in his ideologically driven sophism. Judicial activism of the worst sort. He doesn’t belong on any bench, let alone the Supreme Court.
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Very interesting. Thanks. Perhaps a better case involves education for an autistic child. Gorsuch ruled that the “minimum” was good enough according to law/statute/whatever (sorry, I’m not a lawyer). That ruling was overturned in a similar case recently by the Supreme Court voting 8-0 against Gorsuch’s logic.
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“Law”? In the United States? Where? For whom?
As Glenn Greenwald explained the awful truth in his book With Liberty and Justice for Some:
“Those with political and financial clout are routinely allowed to break the law with no legal repercussions whatsoever. Often they need not even exploit their access to superior lawyers because they don’t see the inside of a courtroom in the first place – not even when they get caught in the most egregious criminality. The criminal justice system is now almost exclusively reserved for ordinary Americans, who are routinely subjected to harsh punishments even for the pettiest of offenses …
… This license – awarded by the same political class that created the world’s largest and most merciless prison state for its poorest and most powerless citizens – represents not just a departure from the rule of law but a fundamental repudiation of it.”
If eight Supreme Court justices cannot figure out how to change a legal lightbulb, then adding one more plumber with a blowtorch hardly seems likely to get the job done. George Orwell got it perfectly, first in Animal Farm and then in 1984:
“All animals are equal, but some animals are more equal than others.”
“In Oceania there is no law.”
Welcome to the The Party, proles. You can pick up your uniforms at the Servants’ Entrance around back. Just don’t let the guests see you anywhere near the front door. Martha’s Vineyard does have its traditions and elegant mannerisms, you know.
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The often profound inequities of the U.S. justice system are all the more reason for compassionate judges. Gorsuch appears to be a face of the establishment, and his approach to the law (all that talk of original intent) is consistent with upholding established privileges of the powerful.
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