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As Confirmation Hearings Near, Panel Examines a Supreme Court with Gorsuch

March 7, 2017 — As confirmation hearings draw near for Supreme Court nominee Neil Gorsuch, the Supreme Court Institute and the Georgetown Law chapters of the American Constitution Society and the Federalist Society hosted a timely discussion on topics surrounding the potential ninth justice.

The March 1 panel, moderated by the New York Times Supreme Court Correspondent Adam Liptak, explored the effect of the Senate’s failure to hold a hearing for Obama nominee Merrick Garland last year; the confirmation process; and the potential effect of Gorsuch replacing the late Justice Antonin Scalia. Dori Bernstein, director of the Supreme Court Institute, introduced the event.

Panelists were divided as to whether the Senate breached constitutional norms or a duty with respect to the Garland nomination. They recognized that Gorsuch, a federal appeals court judge educated at Oxford and Harvard Law — has impressive credentials and qualifications. But whether the Senate should also be looking at ideology, or some other litmus test for a justice, was also a hot topic. 

“You want to look at the body of work of the nominee and really assess the quality of that person’s work — their legal abilities, their fair-mindedness, their commitment to law …” said Shay Dvoretzky, a partner at Jones Day. “[Gorsuch] is a committed textualist, he’s committed to the rule of law. There are absolutely cases in which he has reached results that would be described as conservative, no question…but there are numerous instances…in which Judge Gorsuch ruled against the government, in favor of individual defendants, in ways that perhaps…might not have been his preferred outcome.”

Litmus test?

Kristine Lucius (L’99), former chief counsel of the U.S. Senate Committee on the Judiciary, noted that both the Democratic and Republican 2016 presidential candidates campaigned on a “litmus test” for selecting a justice. But the panelists, including Elizabeth B. Wydra (LL.M.'09), president of the Constitutional Accountability Center, highlighted the importance of judicial independence: Judges, even if they have a philosophy, should “take a case that comes before them as it comes: the facts of that case, the arguments made in that case, the precedent that exists…,” Wydra said. “We want our justices to rule based on that. Not because they’ve guaranteed to vote in a certain way.”  

How Gorsuch might decide business cases was not overlooked. “In the context of employment cases, Judge Gorsuch has ruled decidedly in favor of employers…” said Caroline Fredrickson, president of the American Constitution Society. “It’s a significant issue, and I hope the senators will spend some time examining how much of a textualist he really is.”

 Any chance that the nomination will be defeated? “My own take is that Democrats need to figure out how they want to lose, and it’s a very important strategic decision,” said Ed Whelan, president of the Ethics and Public Policy Center, referring to the filibuster question. “How Judge Gorsuch does at the hearing…will have a real impact on the way on which way Senate Democrats go.” 

The discussion may be viewed here.

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