Sunday, February 12, 2017

The Case Against Confirming Judge Gorsuch Isn't Personal

by Michael Dorf

Two recent news stories may have led some people to conclude that I hold certain negative views about Judge Gorsuch that I do not in fact hold and did not in fact express. In neither case did anyone act in bad faith, but the episodes illustrate a frustration that academics sometimes experience when speaking to the general public.

For a little over a year, Newsweek has been republishing most of my and Prof. Buchanan's blog posts and Verdict columns (with our permission, of course). We are very grateful for the increased exposure to which such republication has led. Other than changing the links and occasionally editing out material that fits on the blog but not in a more general publication, Newsweek runs our essays pretty much just as they first appeared on DoL or Verdict. The one exception concerns titles. Consistent with the general practice in journalism, Newsweek chooses the titles to our pieces without our input, invariably using a title that is either a little or a whole lot different from the titles we originally chose. Often the new titles are catchier or otherwise better than the originals. Sometimes they're merely different, emphasizing a different point from the one that Prof. Buchanan or I had emphasized in the original title, but still perfectly fine. However, on rare occasions, the title goofs by implying that the column makes a point it does not make. Even so, my tendency is to let it go, partly out of deference. If a title does not really reflect what the essay says, so what? Presumably the professionals at Newsweek know better than we academics how to attract eyeballs.

But this weekend was different. DoL readers may recall that last week I wrote a post that I titled Disheartening and Demoralizing But Mainly Distracting. In it, I threw cold water on the conspiracy theory that the Trump administration had colluded with Judge Gorsuch to have him criticize the president's disrespectful comments about the judiciary precisely to make Judge Gorsuch harder for red-state Democratic Senators to oppose. I noted that given Trump's mercurial temperament, even Judge Gorsuch's fairly mild criticism took some courage. I explained that the media's focus on the backstory of Judge Gorsuch's comments to Senator Blumenthal nonetheless served the purposes of the Trump administration by distracting the public's attention from the substance of Judge Gorsuch's views and the horrors of the administration's immigration policies, which were the occasion for the Trump comments that Blumenthal asked Gorsuch about. I concluded as follows: "in the end, it doesn't really matter whether or not Trump and/or his minions are deliberately playing the media and the public. One way or another, they're being played."

I imagine that the Newsweek folks liked that metaphor and so titled the republished version of my post "Supreme Court Pick Gorsuch Plays the Press Like a Fiddle." Yet that headline expressed almost the exact opposite of the point that my essay made. I argued that it was highly unlikely that Judge Gorsuch had engaged in any kind of calculated scheme to deceive the press or public, even as I concluded that whether or not the Trump administration had deliberately played the press, the press (and the public) had been distracted.

As I said above, even on other rare occasions when a headline misrepresented my point, I have let it pass, but I could not let this one pass because I felt it was unfair to Judge Gorsuch, whose professional qualifications and personal integrity I have absolutely no reason to question. Accordingly, I contacted my editor at Newsweek and he immediately and graciously agreed to change the title of the essay to Gorsuch's Trump Remarks are a Distraction. In the meantime, however, the essay with the original title had been tweeted around a few dozen times, which is why I'm taking the time to write about the episode now. In case anyone comes across the older headline (still reflected in the URL for the revised version), I want to make clear that I do not think that Judge Gorsuch has engaged in any "playing" of the press or public.

Meanwhile, a New York Times story could be read to imply that I attributed something like bigotry to Judge Gorsuch. In a story titled Gorsuch Not Easy to Pigeonhole on Gay Rights, Friends Say, reporter Sheryl Gay Stolberg recounts how people who know Judge Gorsuch personally believe, based on their own experiences, that he supports equality for LGBT persons. Why, then, she wants to know, are the national LGBT rights organizations opposing his nomination?

I spoke with Ms. Stolberg late last week and explained that there really isn't any mystery here. Someone can be personally quite comfortable with LGBT rights and even support them as a legislative matter but nonetheless take the view that the Constitution does not protect a right to same-sex sexual intimacy or same-sex marriage. I recalled for her the accusation of homophobia that former Congressman Barney Frank leveled against Justice Scalia based on Scalia's dissent in Lawrence v. Texas. Frank noted that whereas Justice Thomas, in his dissent, explained that he would vote against a law criminalizing homosexual sodomy were he a legislator, Scalia said no such thing.

I told Stolberg that the way to reconcile the personal accounts of Judge Gorsuch as not at all bigoted with the concern of the LGBT rights groups is to recognize that based on his general jurisprudential commitment to originalism in constitutional interpretation, Gorsuch could end up being like Thomas: personally supportive of LGBT rights as a citizen but against finding them in the Constitution. The LGBT rights groups would thus have reason to be afraid that even though Gorsuch is no bigot, he might vote against their claims as a justice.

Stolberg accurately quoted me in her story, but in a way that could be misleading. Immediately after recounting how Judge Gorsuch was personally very supportive of the same-sex marriage of a former law clerk, Stolberg writes:
Michael Dorf, a law professor at Cornell who knows Judge Gorsuch in passing — they were both clerks to Justice Kennedy and run into each other at clerk reunions — says gay rights advocates “have reason to be afraid,” based on the existing evidence about Judge Gorsuch.
This language could be read to suggest that my inference was based on some personal knowledge. It wasn't. I barely know Judge Gorsuch at all, but the people I know well who in turn know him well uniformly speak extremely highly of his personal character. I have absolutely no reason to think that he harbors bigoted views about LGBT persons or anyone else.

The Times article also implicitly draws a contrast between my views and those of Professor Tribe, whom it also quotes. After noting that gay rights groups are concerned that Judge Gorsuch's siding with Hobby Lobby in its litigation against the regulation requiring provision of health insurance that includes coverage for contraception, Stolberg says that Tribe regards Gorsuch's position in Hobby Lobby as “an indicator” but not “a slam-dunk predictor” of his views about LGBT rights.

I completely agree with Tribe. How a Justice Gorsuch will vote on a range of LGBT rights cases is unknown. Based on his general jurisprudential commitments, the rights groups have reason to be afraid, in the same way that if you learned that a plane you were about to board had a 30% chance of crashing you would have reason to be afraid. Indeed, you would have reason to be afraid if there were a 5% chance of a crash.

Before I leave this topic, I should point to one other way in which the Times article is potentially misleading. Immediately before quoting me, it states: "If Judge Gorsuch is confirmed, the composition of the court that made up the Obergefell majority will be unchanged." This might make me look like a doofus who cannot do simple arithmetic. Why should LGBT rights groups be afraid when a Justice Gorsuch would be at most a fourth vote to overrule Obergefell? And maybe not even that, because it is not that hard to imagine that one or more of the Obergefell dissenters might think that all of the marriages that have occurred since the decision create a reliance interest that counsels against overruling.

The answer has two parts. First, stare decisis could be decisive for Chief Justice Roberts, a Justice Gorsuch, and/or perhaps even Justice Alito or Justice Thomas, but it might not be, so it is possible that Gorsuch could cast the fourth vote to overrule Obergefell. Second, this might not be the only vacancy that President Trump gets to fill. If one of the members of the Obergefell majority leaves the Court during Trump's time in office (and while the Republicans hold the Senate), the confirmation of Gorsuch could end up contributing to Obergefell's overruling.

Is that likely? I don't think so, but I also don't think it's out of the question. Thus, what I said was that LGBT rights groups "have reason to be afraid," not that they have reason to be confident that Judge Gorsuch, if confirmed, will vote against their interests or that his vote would be immediately decisive.

* * *

Some readers may conclude that I am being overly sensitive. After all, Newsweek quickly changed the headline, and Stolberg's article did accurately quote me. And I want to reiterate that I don't believe that either my Newsweek editor or Stolberg were deliberately trying to make me appear to say something I didn't say. If I am being overly sensitive, it is because I want to distance myself from the personalization of the confirmation process.

I continue to think the following about Judge Gorsuch:

1) He has stellar professional qualifications and an outstanding judicial temperament;

2) Democrats would nonetheless be justified in opposing his confirmation based on the shabby treatment by Republicans of Judge Garland, who likewise has stellar professional qualifications and an outstanding judicial temperament;

3) Depending on the extent to which one thinks that ideology is an appropriate basis for rejecting a Supreme Court nominee, Democrats might also be justified in voting against Judge Gorsuch's confirmation on the ground that they do not share his textualist/originalist judicial philosophy and are concerned about the results to which it might lead;

and

4) One way or another, Judge Gorsuch will almost certainly be confirmed as Justice Gorsuch. At that point, the fact that some people opposed his confirmation on grounds 2) and/or 3) should not be taken as in any way impugning his professionalism or integrity.