The true role of a Supreme Court justice has a connection to being a man (or woman) for all seasons.
Years ago, I had the notion that if I could own a pub with full control of the multiple televisions hanging about, I would have it perpetually tuned into the pressing sports competition of the day, meaningful lectures and debates on C-SPAN and religious programming on EWTN.
As yet, I have no such pub.
But this week, C-SPAN did not let me down. Hours upon hours of recorded programming covering Judge Neil Gorsuch’s Senate Judiciary Committee Hearings for his Supreme Court nomination were playing in my late evening background. As I tapped away on medical charts and sifted through various essays, the din of senators questioning and opining followed by the judge’s responses filled the room.
And while senators from opposing parties and various states, perched high behind the dais, began the proceedings with their congratulations or concerns, it took little time before partisanship began to bubble forth. In the midst of the momentous nexus of one branch (Congress) considering the composition of a second branch (Supreme Court) appointed by the third branch (President) of American government, the opportunities for statesmanship were abundant. Unfortunately, the occasion to consider the brilliant fundamentals of American democracy where the representatives of the people (Congress) make the laws, the president executes them and the Supreme Court faithfully and responsibly interprets them risked being lost. Instead, senators sought assurances of the judge’s willingness to “stand up for the little guy” or to “hold big business to account” or to commit unswervingly to a particular ideological (not necessarily legally justified) outcome before even hearing a case in question.
But then, a bit of daylight came when Senator Ben Sasse (R-Nebraska) began his remarks. Senator Sasse is a boyish 45, with sad eyes, a keen mind and razor-sharp wit. After disarming Gorsuch (and the room) with awe over the judge’s fortitude of bladder through the interminable proceedings, the senator asked an interesting question.
Sasse: [With respect to your teenage daughter’s softball games], have you ever gotten to a Little League game early, pulled the umpire aside in the parking lot and asked him or her to commit in advance that they would decide the games for the underdog?
(Laughter, Gorsuch responds, “No, but I think some of my buddies have.”)
Sasse: Have you ever asked a referee underneath the zebra stripes of their jersey to wear your kids’ team jersey as the undershirt?
(Laughter. Gorsuch responds, “No, it wouldn’t have helped any. My kids were pretty rotten at basketball.”)
Sasse: We’re obviously not going to pursue this very far, but I do want to make sure that everybody at home knows what’s been happening over the last six or seven hours because some of my colleagues are asking a bunch of tough questions that are really important for you to have to answer. At the same time, there are a whole bunch of questions that have been asked today that are really asking you to take your legal career and your legal ethics and set them aside and play politician on TV today. And that really isn’t your job and some of this questioning really hasn’t been a fruitful use of our time. It is well-meaning to talk about the outcome objectives of a whole bunch of these cases, but I would submit that it is dead wrong.
I want to give you just a couple of the questions that we’ve heard earlier today. At different times, “How can we have confidence that you won’t be for the big guy?” At another point, “How can we know that you feel for the little guy?” This sounds noble but it’s fundamentally a corruption of what the judge’s job is. To seek assurances from you like this is like seeking assurances from a referee before the game that they will pledge to a certain outcome before the tip-off. If the law is wrong and I am somebody who believes that lots of our laws are wrong and overreaching around here, the question should be directed back at us on this panel and on this dais why we don’t fix the laws that are wrong. We shouldn’t be asking you as the judge to commit that when our laws are clunky and bad and in conflict, you will divine to how to change the law on the fly. That’s not the oath that you’ll take. That’s not the Constitution that we’ve all taken an oath to and pledged to, and it’s not what the American people want. So, frankly, I applaud you for your perseverance and patience with us as we’ve continually gone down the path of asking you to answer questions many of which are fundamentally political questions and that you shouldn’t be answering and we shouldn’t be asking.
The brilliance of our Constitution is the separation of powers and the inherent responsibilities each branch of government has distinct from the other. Should one branch begin encroaching on the duties of another, the intrinsic checks on that branch’s expansion of power will have been circumvented.
As Senator Sasse explained and Judge Gorsuch affirmed, judges take an oath to interpret the law, not to make it. That is the true role of a Supreme Court justice. And to preserve our democracy, this oath must be taken seriously. Otherwise, things fall apart.
In Robert Bolt’s magnificent play, A Man for All Seasons, St. Thomas More speaks of the importance of keeping oaths and upholding law when he was secretly speaking to his friend, the Duke of Norfolk.
Sir Thomas More: Have I your word that what we say here is between us two?
The Duke of Norfolk: Very well.
Sir Thomas More: And if the King should command you to repeat what I may say?
The Duke of Norfolk: I should keep my word to you.
Sir Thomas More: Then what has become of your oath of obedience to the King?
The Duke of Norfolk: You lay traps for me!
Sir Thomas More: No, I show you the times.
To be sure, C-SPAN’s Supreme Court nomination hearings can show us many things. The hope is that the hearings remind us of the true role of a Supreme Court justice.
But, perhaps lamentably and all too well, they show us the times.