Six Questions Senators Should Ask Neil Gorsuch

This article originally appeared on this site.

Neil Gorsuch, left, Donald Trump’s Supreme Court nominee, meets with Senator Joe Manchin, the West Virginia Democrat, earlier this month. Neil Gorsuch, left, Donald Trump’s Supreme Court nominee, meets with Senator Joe Manchin, the West Virginia Democrat, earlier this month.CreditPHOTOGRAPH BY CHUCK SOMODEVILLA / GETTY

Senators love to talk. It’s listening that they can’t abide. This explains the maddening nature of most Senate hearings, especially those for nominees to the Supreme Court. Senators are so busy showing off how much they know, or posturing on issues they care about (which are often unrelated to the work of the courts), that the nominee often has little to do but sit there and appear interested. This, of course, is usually fine with the nominee, who has, in any event, been trained to say as little as possible.

Herewith, then, are some suggestions for questions to be asked of Judge Neil Gorsuch, of the Court of Appeals for the Tenth Circuit, whose confirmation hearings for a seat on the Supreme Court will begin on March 20th. The questions are designed, above all, to avoid what might be called the Joe Biden Problem. When given the opportunity to question John Roberts during the hearings on his nomination to be Chief Justice, Biden talked for twenty-four of the thirty minutes he was allowed. My questions are short.

1. During the campaign, President Trump repeatedly promised to nominate pro-life justices to the Supreme Court. Are you pro-life?

Gorsuch will surely duck this question, asserting that he has no agenda except to follow the Constitution. But it’s worthwhile to point out the stakes of the nomination.

2. Like Justice Antonin Scalia, you’ve described yourself (and been described) as a textualist and an originalist. The text of the Constitution does not directly refer to a right to privacy. Do you believe that the Constitution includes a right to privacy?

The right to abortion, first recognized in 1973, in Roe v. Wade, was grounded in what the Court has called a right to privacy. Likewise, the Court said in Lawrence v. Texas, the first major gay-rights case, in 2003, that the right to privacy also protects private consensual sexual activity between adults. In 1987, Robert Bork, in his confirmation hearing, declared that he did not believe in a constitutional right to privacy, an assertion that contributed to his defeat. The right to privacy puts textualists on the spot; if you really believe only in the rights specifically enumerated in the Constitution, that’s a narrower set of rights than most Americans believe they have and value.

3. The authors of the Fourteenth Amendment, which guarantees the equal protection of the law and was adopted in 1868, almost certainly believed that racially segregated schools were permissible. Does that mean that Brown v. Board of Education was incorrectly decided? If Brown was correct, doesn’t that suggest that the meaning of the Constitution can change over time?

In the confirmation hearings for Sonia Sotomayor and Elena Kagan, most Republicans on the Judiciary Committee embraced an originalist view of the Constitution. They asserted that allowing Justices to interpret the words of the framers beyond what those men believed the words meant gave the Justices undue freedom to inject their own views. The Brown case, which is an unassailable touchstone of Supreme Court precedent, presents one of the toughest issues for originalists, because the decision was a clear departure from an originalist approach. But, if it was appropriate to depart from the intent of the authors of the Fourteenth Amendment in Brown, doesn’t that open the door to other departures from originalist dogma? What, then, is wrong with recognizing a right to privacy, a right to abortion, a right to same-sex marriage—none of which were envisioned by the framers?

4. Is money speech? Can Congress or the states regulate campaign expenditures at all? Congress has banned corporations from contributing directly to political campaigns for a century. Is that ban constitutional?

These scenarios emerge from the Court’s notorious Citizens United decision, in 2010, which led to the removal of limits on independent expenditures in support of candidates, and from more recent cases interpreting that decision, such as McCutcheon v. F.E.C. The logical extension of these cases is that any and all regulation of campaign spending—involving money from individuals, super PACs, or even corporations—is prohibited by the First Amendment. Gorsuch should address the modern concept, championed by many conservatives, that the First Amendment requires the all but total deregulation of political campaigns.

5. Do religious people have to follow laws that violate their consciences? Do they have to pay taxes? Do their children have to go to school? How do you decide which laws they can ignore, and which ones they are required to follow?

In 2013, Gorsuch joined his fellow judges on the Tenth Circuit in prohibiting the Obama Administration from requiring Hobby Lobby, a closely held, for-profit secular corporation, to provide contraceptive coverage for its employees, as required by the Affordable Care Act. (The Supreme Court upheld Gorsuch’s position.) In a separate opinion, Gorsuch wrote, “All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others. For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability.” This sounds like an invitation to religious people to pick and choose what laws they want to follow. These kinds of issues are guaranteed to be before the Court with some regularity in future years.

6. We all know that when people arrive at our borders, they give up certain rights. For example, they certainly give up the right to protest about searches of their luggage. But do visitors give up all their rights, like the right to equal protection of the laws? Can we ban all black people from coming to the United States? All Jews? All Muslims?

This question obviously draws on President Trump’s executive orders on immigration, which are still being litigated before the courts. For that reason, Gorsuch will probably be especially reluctant to discuss the subject, but it’s still worth hearing what he will say, even in a general way, about these pressing issues.

Gorsuch will clearly be prepared to answer, or at least parry, questions like these during his testimony. With a Republican majority in the Senate, he has a clear path to confirmation, which he will not want to jeopardize by taking controversial stands with his answers. Still, the senators’ questions themselves serve an important public function, in reminding the public about the stakes and content of Supreme Court debates. In other words, in the event that Gorsuch is asked these questions, he probably will not answer them—but that shouldn’t prevent the American public from thinking about what the answers ought to be.

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