Neil Gorsuch’s confirmation hearings have been refreshing to watch. Democrats, many of whom approved of his becoming a judge on the Court of Appeals over a decade ago, recognize that he is exceptionally qualified for the Supreme Court, yet they have attempted, as politicians must do, to take him down with gotcha questions and all of the underwhelming arrows they have been able to bundle together.
Gorsuch has parried all challenges in an articulate, graceful and effortless manner that are markedly distinct from the president who nominated him. Thus far, the reluctant Trump voters who pointed the long-term importance of the Supreme Court at least partially have been vindicated in their ballot box decision.
I, for one, have been impressed with Gorsuch since I first heard about his nomination. Upon reflection, I realize that it’s because, in many ways, he personifies the direction America should go. Three examples are his thoughtful, measured conservatism, his determination to keep law and politics separate, and his terrific, subversively clear opinion writing.
A surprisingly excellent profile in The New York Times recounts how Gorsuch, a fan of Ronald Reagan from a young age, made his way through school, succeeding and impressing even in the overwhelmingly liberal environments of Columbia and then Harvard Law School. He was aided, no doubt, but a characteristic a history teacher of his described:
“Even as a kid, he would be able to step back from situations and be able to make judgments about them,” said Stephen Ochs… “He had the ability to be curious and look at both sides without being threatened.”
This apparently was noteworthy then; today, to consider opinions contrary to one’s own without being threatened by them makes one positively as rare as a unicorn.
In college and law school, Gorsuch did not live up to the fears of many conservative parents. Rather than become a liberal, he sharpened and calcified his opinions in the fire of opposition. He survived by remaining a happy warrior. This characteristic stuck with him into his judgeship and professorship at Harvard.
So too did his quiet, considered worldview and his openness to ideological opponents. The New York TImes’ profile summarizes this way:
Harvard was the epicenter of a debate over whether the Constitution was a living document to be interpreted in evolving times or a neutral, unchanging charter judged by its original text. “It was a pretty contentious time at Harvard Law School,” said Adam H. Charnes, a classmate. “There were conservatives who were provocateurs. [Gorsuch] wasn’t anything like that.”
Judge Gorsuch befriended liberals, including Norm Eisen, later a White House aide and ambassador under Mr. Obama. “He stood out among the conservative group in not being loud,” Mr. Eisen said. “He managed to stay above that while making his conservative positions clear. I thought it was impressive.”
In the minds of too many conservatives, to be steadfast in one’s conservatism means not to acknowledge certain facts that may seem to challenge such a worldview. Fake news and alternative facts become armor to protect one’s opinions.
Senator Dick Durbin must have thought Gorsuch fell into that camp when challenging him to respond to allegations by a former student that he asked for a show of hands in answer to a sexist question regarding women taking maternity leave. Not only did Gorsuch deny the allegation (which has also reportedly been contradicted since by other students of his) but in setting record straight, he showed that he acknowledges that women are still asked “inappropriate questions about family planning,” even as he is shocked by the prevalence of such questioning. Examples ranging from his own mother’s experiences and those of former Supreme Court justice Sandra Day O’Connor have shown him the sexism that exists in employment, and his worldview is nuanced enough not to be threatened by this fact. Instead, he recognizes and equips his students for the ethical conundrum such a hypothetical scenario represents.
Likewise, conservatives (and liberals) should appreciate when facts are challenging to their own worldviews and embrace them anyway. There is no such thing as productive conversation when there are not facts, but liberal facts and conservative facts.
Gorsuch’s conservatism also does not lead him to an activist conservatism from the bench. This is the second thing about him that impresses me. The only litmus test for a judge or justice should be their objectivity in applying laws as written and intended — laws that may have been passed by liberals or conservatives.
This is a test Gorsuch has aced. In response to Senator Lindsey Graham’s question whether President Trump asked him to overturn Roe v. Wade, he not only denied that such a thing had happened, but said that if is had, he would have “walked out the door.” Almost all conservatives want Roe v. Wade overturned, but in calling it the “law of the land,” Gorsuch acknowledges the need for law to rule, rather than the individual opinions of judges or justices. Should Roe be overturned, it should be because it is bad law (and it is) that cannot be reconciled with logic, consistent application, the Constitution and other existing law, not because precedents can be thrown out when justices don’t like the result.
Everything in America seems increasingly politicized. If a Supreme Court justice, of all people, can approach the law from a depoliticized standpoint, perhaps he can be an example to us all.
A final way Goruch could be an example for our betterment is in the clear, concise manner in which he writes his opinions. It has been over twenty years since NYU mathematical physicist Alan Sokal proved that nonsense could be published in academic journals so long as they are written in sufficiently academic jargon. Not only academic writing, but scientific, technical and legal writing undermine public discourse because they can “inflate weak ideas, obscure poor reasoning, and inhibit clarity,” as Calvin once explained to Hobbes.
Specifically regarding law, James Madison wrote in the 62nd Federalist paper, that
It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?
An article in The Federalist describes the subversively plain opinions Gorsuch has written, in contrast. He writes sentence fragments when they are the clearest way of expressing his point, though it is frowned upon. Good for him. He begins sentences with conjunctions and the word “because” in spite of the asinine advice of elementary school teachers who prohibit such constructions, even though they are perfectly acceptable in English. He include contractions, rather than say something hideous in order to avoid them. Most importantly for the purposes of public discourse, he writes short sentences, not long ones that supposedly show off the intelligence of the author.
I must add that, as a writer, I am encouraged by anyone who models good writing amid all the bad writing out there. And the Court lost one of its best writers ever in Justice Scalia, leaving a hole for someone like Gorsuch to fill.
More importantly, clear writing represents a respect for the meanings of words, which is needed if one is to have a respect for the meanings of laws. Gorsuch’s writing is a necessary condition of his originalism. His originalism is a necessary element of a truly conservative disposition, which is not simply a menu of policy prescriptions, but the sustaining of the rule of law, even when the outcome is not of one’s preference.
All of these things — good, clear writing; originalism; a nuanced and conservative disposition grounded in reality — are pieces of a healthy America that we should pursue. Neil Gorsuch embodies them all. For that reason, I wholeheartedly hope he is confirmed as our next Supreme Court justice.
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