Politicians In Robes

REUTERS/Joshua Roberts

Jim Huffman Dean Emeritus, Lewis & Clark Law School
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For both parties, the trouble with politicians in robes is their politics.

Supreme Court nominee Neil Gorsuch told the Senate Judiciary Committee yesterday that judges are not politicians in robes.  His decade-long record as a judge on the 10th Circuit Court of Appeals demonstrates that he practices what he preaches.  He has participated in 2700 appeals, 97% of which have been decided unanimously.  Meanwhile there seems to be not a single issue on which the democrat and republican politicians in Congress can agree.

Gorsuch’s record is not unusual among federal judges.  In most cases most federal appellate judges are in agreement about the correct, which is to say legally required, outcome in the appeals that come before them.  If politics guided their decisions, unanimous decisions would be a rarity.

The problem is not that the judges are political, but rather that the politicians, the press and the general public expect and even want them to be political.  One of my senators from Oregon, Jeff Merkley, has proudly proclaimed in an email to supporters that he is “the first Senator to stand up and commit to opposing Gorsuch.”  Although he lists a few questions he would like to have answered, it turns out Gorsuch’s answers will not matter to Senator Merkley because “the Republicans have stolen this Supreme Court nomination from President Obama, and I am going to do everything in my power to stop this theft.”

The claim that the Supreme Court position to which Gorsuch has been nominated was stolen by republicans from President Obama and the democrats can only mean that the position belongs to them.  Which means, of course, that any seats on the court vacated during the remainder of President Trump’s time in office belong to Trump and the republicans.  But we can rest assured that Senator Merkley will oppose any future Trump nominees with the same determination he expresses over the Gorsuch nomination.  (Should he recognize this inconsistency if the occasion arises, I’m confident Merkley will claim that Trump is not a legitimate president.)

Merkley’s real objection is not that the seat was stolen but that he expects a Justice Gorsuch to rule differently in particular cases than would have a justice Merrick Garland.  If he expected Garland and Gorsuch to reach the same results based on the law, he would not be so worked up.  It is the results he cares about, not the rule of law or some notion of party or presidential entitlement to seats on the high court.

Among Merkley’s and most democrats’ objections to the Gorsuch nomination is that he has ruled in favor of ‘big business’ and against the ‘little guy’ in several cases.  But it is the law, not the wealth or social standing of the parties to a lawsuit, which should determine the outcome.  Surely big business does not always get the law wrong, nor do the downtrodden always get the law right.  The law and the judge are meant to be blind to the political popularity of the parties who come before them.  Gorsuch’s record clearly demonstrates that he has been, but if his rulings are judged by who wins and loses rather than the legal merits of the competing claims, those rulings, and the rulings of every other judge, will be condemned by one party or the other as political.

If we judge judges by the political consequences of their decisions, they can only gain our approval by basing their decisions on politics – and then they will only satisfy those of us who agree with the political choices they make.

To be sure, there are a few individual liberty issues like abortion, gay rights and gun rights where it seems the positions taken by particular justices are all too predictable based on the politics of the appointing president.  But in the vast majority of cases the positions of the nine (now eight) justices are either unanimous or scrambled politically.

The problem is not that our federal judges are politicians in robes, though occasionally judges fail to maintain their objectivity.  Rather the problem is that, like Senator Merkley, we want them to be our politicians in robes.