No one will ever confuse the bland hearings for Supreme Court nominee Neil Gorsuch with the rousing intellectual proceedings that occurred when Robert Bork sat before the senate judiciary committee seeking appointment to that court. For four and a half days, Americans were tuned to television and radio broadcasts of the most enlightening judicial give and take this country has ever witnessed. This time, two days of questioning of Gorsuch were largely a waste of time.
Gorsuch not only remained mum on how he might vote on any case that might come before him, a silence that was indeed proper, but he utterly failed to explain his understanding of constitutional issues other than to repeat that he is an originalist and will judge fairly. What America needed was a thorough examination of Gorsuch’s understanding of the constitution and the court’s role in interpreting it. That didn’t happen.
In September, 1987, Robert Bork was on the hot seat, meeting each senators’ challenging questions with the brilliance of the law professor and attorney that he was. When the questioning of Bork ended, observers and participants, whether for or against the nominee, expressed amazement at the high level of discourse that had just taken place. No one will say that about the Gorsuch hearings.
Orrin Hatch, still on the judiciary committee thirty years later, told Bork, on the stand on Constitution Day, that his analysis of how our charter works was unequaled by any commentator or television program. Former Attorney General William Rogers called the proceedings an adult education class of the highest order, “one that ought to be required reading for law students.” To fellow Republican Alan Simpson the hearings were like a return to law school, with the sharpest kids in class debating the nation’s sharpest law professor. Patrick Leahy, who also serves on the Gorsuch committee, saw the Bork hearings as a graduate seminar in constitutional law. The country reveled in an intellectual feast.
That had never happened before, and would not be repeated with Supreme Court nominees following Bork. Anthony Kennedy, who gained the seat Bork so dearly wanted, took the stand briefly. His entire hearing lasted 2 1/2 days compared to Bork’s two weeks.
What made Bork’s interrogation so different from any other was the depth of questions and the forthright answers. Simpson noted the reticence of other recent nominees to speak out on matters of substance. Sandra Day O’Connor, William Rehnquist and Antonin Scalia, whom Gorsuch would replace, all took the same line, summed up by Scalia: “I do not think I should respond to the question because that may well be an issue argued before the Court and I do not want to be in the position of having given an indication of how I would come out on it.”
Despite this closed-mouth tradition, Bork rarely invoked his right to remain silent. Although committee members carefully avoided questions about cases that might compromise him, when they ventured into a questionable area Bork pursued the issue with relish. The result was an unprecedented discussion of constitutional theory.
Via television and radio the nation enrolled in Rogers’ adult education class as Bork explained in detail what “original intent” really meant. He laid down definite ground rules for overturning precedent: Was it too late to reverse? Was the decision so embedded that an overturn would disrupt society? Had the Court been badly divided?
Gorsuch did say that the abortion case, Row v Wade, was precedent. But he didn’t say it couldn’t be overturned.
Bork tackled every issue the committee raised, debated the constitutional basis for abortion, privacy, and liberty, and presented a conservative analysis of the ninth and tenth amendments.
That, unfortunately, didn’t happen this time. The senators gave Gorsuch the Kennedy, Breyer, Ginsburg, Souter, Roberts, Alito pampering. The Clarence Thomas hearings concentrated too much on Anita Hill and not enough on Thomas’ “natural law” theory.
Simpson correctly predicted, as Bork’s grilling ended: “This will never happen again. Doesn’t matter whether you are confirmed or rejected. Because the next Supreme Court nominee will respectfully decline to give an opinion on whether any of the existing law on the Supreme Court is right or wrong.”
Wyoming’s homespun philosopher was partly right. It wasn’t only that the nominees, including Gorsuch, refused to talk. The senators didn’t ask the right questions. It was their obligation to force Gorsuch to tell the nation how he reads the Constitution on matters of substance. They didn’t do it.
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Ralph E. Shaffer, professor emeritus of history at Cal Poly Pomona, is author of “The Bork Hearings,” Markus Wiener Publishers. [email protected]