Below is my latest column in USA Today on the nomination of Judge Neil M. Gorsuch to the United States Supreme Court. I testified last week on the nomination before the Senate Judiciary hearing. I was particularly pleased that one of the other witnesses that day was a GW graduate: Karen Harned (Executive Director, National Federation of Independent Business Small Business Legal Center. Karen has quickly become a leader in Washington on legal and policy matters impacting businesses. Since the hearing (and publication of this column), the Democrats have indicated that they are preparing for a filibuster. (My colleague Dick Pierce has an interesting column opposing such a move).
As I stated at the hearing, I disagree with some of Judge Gorsuch’s opinions but I believe that he is eminently qualified for the Supreme Court. I am particularly disturbed by some of the attacks on his writings on major issues of our time. While many lawyers in Washington pathologically avoid any statements or writings on controversial subjects in the hope for government appointments, Gorsuch actively participated in the national debate and contributed interesting perspectives on those questions. He refused to remain a pure pedestrian as others debated issues like euthanasia. He should not be penalized for doing so. One can disagree with his perspective but his analysis is uniformly probative and at times profound.
If there is one thing that should be clear from the confirmation hearings of Judge Neil Gorsuch, it is that he is no Antonin Scalia. And that is a good thing.
Many of us had great respect for Scalia, who was a judicial icon on the court. Yet we do not need a jurist who tries to be a knockoff or facsimile of Scalia. We need someone who is comfortable in his own intellectual skin. The priority should be not to replace a conservative with a conservative but an intellectual with an intellectual. Gorsuch is precisely that type of nominee.
I have long been critical of the preference shown nominees who lack any substantive writings or opinions on the major legal issues of our time. This has led to what I have referred to as the era of “blind date nominees,” candidates with essentially empty portfolios when it comes to any provocative or even interesting thoughts. Such individuals make for good nominees but not great justices.
Gorsuch is a refreshing departure from that trend. He has eagerly and substantively participated in the national debate over some of our most sensitive issues.
Every president and senator has expressed a commitment to placing the best and the brightest on the court, though few seem to agree on the qualitative measures for such nominees. Historically, the record is not encouraging. The actual members of the court have ranged from towering figures to virtual non-entities. To put it bluntly, we have had far more misses than hits among appointees to the court.
To be one of nine, a nominee should be an intellectual leader who has shown both a depth and scope of knowledge of the law and its history. Quite frankly, few nominees have been particularly distinguished on this basis. The low moment came with President Nixon’s nomination of Judge G. Harrold Carswell, who was criticized as the “dull graduate of the third best law school in the state of Georgia” and lacked any scholarly articles or significant decisions. Sen. Roman Hruska famously rose to his defense with the declaration that “even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance?” The answer is, of course, no. The highest court is a place for those who have earned the honor of confirmation through a lifetime of demonstrated and exceptional intellectual achievement.
Gorsuch is the gold standard for a nominee. He is widely respected for his writings on legal theory and history, which include refreshingly provocative ideas on the structure of government, morality in the law and interpretive theory. This is, in other words, a full portfolio of work at the very highest level of analysis.
Confirmation hearings often take on an almost mystical character as members and experts hold forth on what type of justice a nominee will prove to be over the course of a long tenure on the court. It is an exercise that not only defies logic but also can border on the occult. If history is any judge, even the nominee cannot say for certain where his tenure on the court will take him.
These hearings always remind me of an often told, but perhaps apocryphal, story of Justice Oliver Wendell Holmes, who was traveling by train to Washington. When the conductor asked for his ticket, Holmes searched high and low for it until the conductor reassured him, “Don’t worry about your ticket, Mr. Holmes. We all know who you are. When you get to your destination, you can find it and just mail it to us.” Holmes responded, “My dear man, the problem is not my ticket. The problem is … where am I going?”
Most nominees are in a position not unlike that of Holmes. People of good faith can evolve on the court and even change dramatically in their new role. I do not expect such a transformation in Gorsuch, who has deep and well-established jurisprudential views. However, I expect he will go wherever his conscience takes him regardless of whether it proves a track to the left or the right. That might make the final terminus uncertain, but it will be an exciting trip to watch.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter @JonathanTurley.