On Tuesday afternoon, Neil Gorsuch sat before the Senate Judiciary Committee for the second day of his Supreme Court confirmation hearing and gave an impressive masterclass in dodging and deflecting questions about what kind of justice he would be.
While Gorsuch was able to answer Ted Cruz's loving softball of a question about his fondness for The Hitchhiker's Guide To The Galaxy, he spent the bulk of the day insisting that he couldn't really comment on landmark cases like Roe v. Wade or Shelby County v. Holder. Gorsuch reasoned that, if he were to share his opinions on cases, he'd be running the risk of "tipping his hand" to litigants as to how he might rule on their cases in the future, making him a fundamentally unfair judge.
In response to Senator Dianne Feinstein's question about recent workplace discrimination cases where the Court ruled for employers over their employees, Gorsuch said:
“If I indicate my agreement or disagreement with a past precedent of the United States Supreme Court. I’m signaling to future litigants that I can’t be a fair judge.”
To Gorsuch's credit, it's fairly common for judges to reign their personalities in somewhat during the confirmation process—especially after Ronald Reagan nominee Robert Bork was so vocal about his controversial politics that he was rejected by the Senate in 1987. But his seeming unwillingness to at all share the inner machinations of his legal mind is still extreme when you look at the confirmation hearings for other recent Supreme Court justices like Elena Kagan and Sonia Sotomayor.
During her confirmation hearing, for example, Sotomayor was similarly hesitant to comment on recent Supreme Court rulings, but felt more than comfortable stating that she felt as if Brown v. Board Of Education was decided correctly, something Gorsuch did not do.
With Gorsuch so reluctant to open up, we have to look at how he's ruled in the past as a judge on the United States Court of Appeals for the Tenth Circuit to get any picture of him. And it doesn't look great. In fact, it makes him look like a deeply callous person.
Much as been written about Gorsuch's decision in TransAm Trucking v. Dept. of Labor, in which a man was forced between choosing to stay with the cargo he was driving and freezing to death in his truck after it broke down or leaving the cargo and saving his life in the process. The man chose to save his own life and, once the cargo was secured, his employer chose to fire him for the decision.
While the Tenth Circuit ultimately sided with the man's lawsuit against his employer for wrongful termination, Gorsuch gave a full-throated dissent, calling the weather conditions merely "unpleasant" and stating that it wasn't the court's job to ponder whether TransAm's decision to fire a man who saved his own life "was a wise or kind one."
"The trucker in this case wasn’t fired for refusing to operate his vehicle. Indeed, his employer gave him the very option the statute says it must: once he voiced safety concerns, TransAm expressly — and by everyone’s admission — permitted him to sit and remain where he was and wait for help," Gorsuch wrote. "The trucker was fired only after he declined the statutorily protected option (refuse to operate) and chose instead to operate his vehicle in a manner he thought wise but his employer did not."
In another instance of Gorsuch following the letter of the law to the detriment of a person's well-being, his 2008 opinion on Thompson R2-J School District v. Luke P. stated that, so long as schools can prove that their special needs students are making bare minimal progress, then they can't be accused of violating the Individuals with Disabilities Education Act (IDEA). On Wednesday, all eight of the sitting Supreme Court justices—from liberal Sonia Sotomayor to hard-right Clarence Thomas—struck Gorsuch's decision down.
"For children with disabilities, receiving instruction that aims so low would be tantamount to 'sitting idly . . . awaiting the time when they were old enough to ‘drop out," Chief Justice John Roberts wrote for the Court.
Fans of Gorsuch's often point to his textualist, literal interpretations of the law as reasons why he makes such a strong candidate for the Court. In the most technical, literal sense, Gorsuch's ability to follow the law as it's written makes him a competent judge. But a competent judge isn't necessarily a good judge. A good judge, ideally, is the type of person whose understanding of the law goes hand in hand with their understanding of the various harrowing circumstances that people find themselves in by the time their cases make it to the Supreme Court. Given what we know about how Gorsuch treated workers trying to fight off death-like conditions and children with disabilities, it seems highly unlikely he'll meet this standard.