Turow’s Reversible Errors—Part 2

by Ed Whelan

Continuing with my critique of Scott Turow’s Vanity Fair attack on Supreme Court nominee Neil Gorsuch (and numbering my points serially from my Part 1 post):

5. Turow scripts a set of questions for Senate Democrats to ask at Gorsuch’s hearing that will—get this!—“force[] [Gorsuch] to concede [Merrick] Garland’s qualifications” for a Supreme Court seat. E.g.:

In your view are you a better judge than Merrick Garland?

Do you have the same length of service as Judge Garland on the appellate court? (No)

Have you, like Judge Garland, served as the chief judge of the Circuit on which you sit? (No)

He even “expect[s]” that Republicans would “try to rule these questions about Garland somehow out of order” and that there might be a dramatic confrontation over them that should cause Senate Democrats to “get up and leave and boycott the confirmation process thereafter.”

All that Turow is showing is that he understands next to nothing about the confirmation process.

Earth to Turow: The very sound Republican strategy on the Scalia vacancy was established on the very day of Scalia’s death (exactly one year ago today, as it happens). It had nothing to do with Garland (even though it probably helped win him the nomination), and Republicans never disparaged Garland’s qualifications. As someone who has repeatedly stated my own admiration for Judge Garland, I am confident that it would not take any tricky cross-examination to get Gorsuch to avow the same. Nor would Republicans have the least concern about your oh-so-clever questions.

6. Turow also imagines that Gorsuch has “boxed himself in” to being questioned about his personal beliefs since “those beliefs, according to his own catechism, would not control how he would rule on the cases before him.”

So in Turow’s view, a Supreme Court nominee who says that his personal views will influence his judging can’t be asked about those personal views but a nominee who says that his personal views won’t influence his judging can be. On the basic measure of relevance, I can’t see how that distinction makes any sense.

In any event, Turow seems not to realize that all or nearly all Supreme Court nominees have put themselves in the same “box” that Turow imagines Gorsuch to be in. To take but one example, Elena Kagan stated at her hearing that “judging is about … how the law applies to [the] case, not how your own personal views, not how your own political views might suggest, you know, anything about the case.”

Moreover, insofar as the traditional practice of a nominee’s refusal to discuss personal views is justified, it rests heavily on the public interest in the appearance of judicial impartiality—an interest that would be disserved by a nominee’s expressing his personal views on contested issues, irrespective whether he says those view are or are not relevant to his judging.

7. Turow wants Democrats to use all possible weapons, including resorting to the filibuster (even if that means that Republicans will eliminate the filibuster). But, wait. I thought (see point 1 of my Part 1 post) that Turow insists that the Senate has a “constitutional mandate” to “allow a vote on whether or not to confirm” a Supreme Court nominee—​in other words, not to use the filibuster to prevent an up-or-down vote on the nomination.

Yes, Turow’s constitutional argument is insipid, but the fact that he would apply it (in the same essay, no less!) to the Garland nomination but not to the Gorsuch nomination shows what a hopeless hack he is.

8. Turow posits that Gorsuch might lead the Supreme Court not merely to overturn Roe v. Wade (and restore abortion policy to the democratic processes) but to go much further to establish “a constitutional right to life” that would amount to a “national ban on abortion.”

You see, Gorsuch wrote a dissertation and book that expressed his moral opposition to assisted suicide and “went on to suggest the possibility of a constitutionally enforceable right to life” against assisted-suicide laws. Plus, “assisted suicide is an obvious proxy for reproductive choice.” So we could be just around the corner from having a Supreme Court majority embrace a proposition that no justice has ever endorsed—and that Justice Scalia specifically rejected.

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