His long trek through more than 70 senators’ offices behind him, Judge Neil Gorsuch now comes before the Senate Committee on the Judiciary knowing at least two things for sure. First, he can expect Democratic members to offer uplifting discourses on the vital principle of judicial independence. And second, those very members will demand answers and specific commitments that, were he to oblige, would seriously compromise judicial independence. The message of the day has already been announced by progressive pressure groups: “No answers, no confirmation.”
For current members of the Supreme Court, who have been through it all themselves, it will doubtless bring back uneasy memories. Invariably during confirmation hearings, inquiries into the quality of mind and fitness of a nominee devolve into attempts to extract specific promises on matters likely to come before the Court. It’s never enough for some senators to understand a nominee’s general approach to constitutional issues. They want to know exactly how that nominee would vote on the usual issues—in effect, a solemn pledge to support and defend the liberal agenda.
It’s lost on the progressive left how this undermines any coherent definition of judicial independence. Their project for so many years now has been to bend the federal courts to their own ideological purposes, advancing changes in law that could not be achieved in the elected branches of government. Prior Court decisions favored by liberals are to be treated with hushed reverence, as if enshrined in law for all time and never again to be questioned. Less favored rulings are to be regarded as open questions, ripe for reconsideration. If a nominee doesn’t display a feel for all this, knowing which precedents call for genuflection and which require an air of earnest skepticism, that’s when the trouble usually starts.
This time around, we’re told that the nominee must meet not one test but two. Judge Gorsuch will have to contend with question after question seeking commitments that no person truly qualified to sit on the Court would even consider making. More than that, Democrats insist that for the judge to receive a floor vote, 60 senators must first declare their support. Along with “no answers, no confirmation,” we now have “no supermajority, no vote.”
Neither test has any basis whatever in either the Constitution or in historical practice. And it’s not only the nominees of Republican presidents who have been urged to make ideological pledges and firmly refused; others have done so as well, under great pressure and to their credit. Justice Ruth Bader Ginsburg, at her confirmation hearing in 1993, deflected dozens of such inquiries, declaring, “A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.” That disappointed a few senators, but it also helped to earn Justice Ginsburg’s near-unanimous confirmation.
As for the 60-vote standard, it is now invoked by Democrats as if the idea came straight from James Madison himself. Hallowed tradition, we are given to believe, holds that no nominee merits confirmation short of the 60 votes it takes to break a filibuster. In reality, it is an entirely new invention with no historical basis predating the judicial battles of the Bush years, much less with any lineage traceable to the Framers of the Constitution.
From 1789 until 2003, nominations to the federal courts were submitted to the Senate with no imagined requirement of anything beyond a majority. If the Constitution’s authors had intended such a rule, they would surely have prescribed it, as they did in requiring supermajorities for treaty ratification, veto overrides, removal of impeached officials, and proposed constitutional amendments. The 60-vote standard has no other framer than Harry Reid. And in the case of lower courts, he abandoned his own rule the moment it no longer served his purposes.
If receiving the approval of 60 senators is the one true way to the Supreme Court, moreover, where does that leave the two current justices, Clarence Thomas and Samuel Alito, who got there with 52 and 58 votes, respectively? The short answer is that it leaves them exactly where they are, because 50 plus one is all they ever needed in the first place.
Even so, senators on the left now demand that Neil Gorsuch meet a sort of two-pronged test—commit to their agenda, and then find nine more votes than make a majority. And it’s easy to see why the Framers would never have considered leaving us with this arrangement. One imagines nominees behaving as politicians, essentially bargaining with senators and currying favor in exchange for support. You could hardly design a system better calculated to subvert judicial independence.
As the senators will see for themselves in the days ahead, President Trump’s first Supreme Court nominee is a man whose independence and integrity cannot be compromised. He understands, as they should, that you don’t earn a place on the High Court by giving the right answers to the right number of senators. Life tenure on the bench doesn’t come that easy or that cheap. It’s gained by a worthy career in the law, high character, and faithfulness to the Constitution. Those still make for a very high bar to clear, and political power plays should not be used to set it lower.
Leonard A. Leo has advised President Trump on the Supreme Court. He is on leave from his role as executive vice president of the Federalist Society.
This post originally appeared on Weekly Standard