Judge Neil Gorsuch is scheduled to complete the long and grueling questioning of his confirmation hearing today. Indeed, he may finish a bit early. Like past nominees, Gorsuch declined to discuss cases and said little about his positions on possible cases dealing with subjects like abortion. Nominees are trained to hit grounders in these hearing and avoid pitches in the corners or trying to put anything over the wall. He stayed with that strategy and the Democrats have made little progress in undermining his stellar record. I have two columns out today at USA Today and The Hill newspaper discussing different aspects of the nomination. I am scheduled to testify at the hearing on Thursday when they call expert witnesses. There remains one disturbing question, however, that needs to be addressed: is Judge Gorsuch anti-duck?
Thus far, the only disappointing moment came when Judge Gorsuch failed to answer what may have been the most important question asked during the hearings, a question posed by the high school son of Arizona Sen. Jeff Flake whether Gorsuch would rather fight 100 duck-sized horses or one horse-sized duck during his confirmation hearing.
Judge Gorsuch failed or declined to give an answer, leaving Senators with the difficult decision of what to do in light of the failure to give his position on the key question. This is not a question barred by the “Ginsburg Rule” since no horse or duck or duck-sized horse is in a pending case before the Judge. It has raised the question of what Gorsuch is hiding and whether he is biased in favor of horses as a Colorado judge and well-known Broncos fan. Duck organizations have raised the alarm over his possibly being “in the saddle” for big horse interests. Whether we have a nominee who is pro-horse is perhaps left chilling then the question of whether he is so anti-duck that he was speechless when confronted by Flake. Gorsuch’s well-known love for fishing adds to the concern. Ducks can interfere with fishermen and Gorsuch’s ducking the duck question could raise an issue of a lack of judicial impartiality.
For the ADA (the American Duck Association), the concern is heightened by the fact that he is replacing a man who would often hunt ducks and eat them. They are therefore crying fowl at the notion that Judge Gorsuch could not or would not answer this penetrating question.
The answer by the way is clear: you fight the 100 duck-sized horses. Now before I hear the neighing from horse apologists. The weight of a horse can reach 2,200 pounds and the height can be as much as six feet. In comparison the weight of a duck is three pounds and less than a foot in height. Of course the weight of a duck has been a long-standing debate, including in quasi-judicial proceedings:
Putting that debate aside, facing a 2,200 pound, six-foot duck is a daunting prospect. Extrapolating the increased dimensions on height, the beak of the duck alone would present a menacing weapon of three foot bone covered by a hardened layer of epidermis known as the rhamphotheca. No rational (or unbiased) person would face such a menacing mallard over a bunch of 8-inch horses. A two-ton duck could deliver a death-dealing blow in a single attack (putting aside the possibility of retaining the ability of flight at its immense size). The only existential threat of being trampled to death by tiny horses would be to the most passive victim.
That returns us to the troubling question of what the nominee is hiding and whether ducks can expect a fair shake from a Justice Gorsuch.