This week, my Senate Judiciary Committee colleagues and I will consider a critical question: Is Judge Neil Gorsuch prepared to fill the seat left by the late Justice Antonin Scalia on the United States Supreme Court? We will weigh this question carefully at Gorsuch's confirmation hearing, which begins this morning.
Although the hearing begins today, we have been assessing Gorsuch's record and qualifications since he was nominated in early February. We have pored over his judicial opinions and other writings. We have asked for, received, and reviewed hundreds of pages of documents provided by the nominee. We have also reviewed dozens of letters submitted by outside groups and over 150,000 pages produced by the Justice Department from Gorsuch's public service there.
Indeed, this is not the first time we have assessed Gorsuch's qualifications. We thoroughly reviewed his record in 2006 when he was nominated to the U.S. Court of Appeals for the 10th Circuit. Not one senator voted against Gorsuch's confirmation.
This is the 14th confirmation process for a Supreme Court nominee in which I have participated. While some things change, others stay the same. The conflict over judicial appointments remains a conflict over the proper role of judges in our system of government. Over the last several weeks, I have addressed this issue on the Senate floor and in opinion pages around the country by contrasting what I have called impartial judges and political judges.
An impartial judge focuses on the process of interpreting and applying the law according to objective rules. In this way, the law rather than the judge determines the outcome. A political judge, in contrast, focuses on a desired result and fashions a means of achieving it. In this way, the judge rather than the law often determines the outcome.
Unfortunately, some of my colleagues have taken their search for a political judge to new extremes this year. The New York Times reported last week that the most prominent line of attack against Gorsuch is that he is "no friend of the little guy." Even liberal Harvard law professor Noah Feldman agrees that this politically motivated attack is "a truly terrible idea" because "justices — including progressive justices — shouldn't decide cases based on who the parties are. They should decide cases based on their beliefs about how the law should be interpreted."
Something is seriously wrong when the judicial confirmation process resembles an election campaign for political office. Politicizing the judiciary in this way also undermines judicial independence. While the Constitution protects judges from external political pressures, the impartial judge also strives to maintain his independence from internal political pressures.
The campaign for a politicized judiciary includes strategies to get judicial nominees to take partisan positions on issues that could come before them in the future. Principled nominees don't fall for this bait. They understand that the integrity of the judiciary far outweighs questions of politics. Perhaps Justice Ruth Bader Ginsburg put it best: "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."
During this confirmation hearing, I urge my colleagues to focus our analysis on whether Gorsuch will be an impartial judge, and not whether he is suitable to run for public office of any particular party. And I urge them to respect judicial independence by not demanding that he prejudge issues that may come before him as a judge.
If at the end of the hearing the opposition's criticism remains that Gorsuch is "no friend of the little guy," the American public will know with certainty that there is no principled argument against Gorsuch's confirmation. The American Bar Association seems to have already reached that conclusion by unanimously giving him their highest rating. Based on my review of his record and qualifications, I concur that Gorsuch is the ideal nominee to fill Scalia's seat on the Supreme Court.
Sen. Orrin Hatch is Utah's senior U.S. senator.
