With a shrewdly calculated innocence, Judge Neil Gorsuch told a big fat lie at his confirmation hearing on Tuesday. Because it was a lie everyone expected, nobody called it that.
“There’s no such thing as a Republican judge or a Democratic judge,” Gorsuch said.
Gorsuch, the amiable veteran of many Republican campaigns, is well-placed to know how serious a fib that was. As Sen. Al Franken, D-Minn., noted, President Trump’s nominee for Merrick Garland’s Supreme Court seat actually received a citation for helping win confirmation for Republican-appointed judges.
We now have an ideological judiciary. To pretend otherwise is naive and also recklessly irresponsible because it tries to wish away the real stakes in confirmation battles.
The best scholarship shows an increasingly tight fit between the party of the appointing president and how a judge rules. It’s a point made in The Behavior of Federal Judges by Lee Epstein, William Landes, and Judge Richard Posner, and also in research by Neal Devins and Lawrence Baum.
As Devins and Baum write, party polarization now affects the behavior of judges, “reducing the likelihood that they will stray from the ideological positions that brought them to the court in the first place.”
Face it: If partisanship and ideology were not central to Supreme Court nominations, Gorsuch would be looking at more years in his beloved Colorado. Notice that I referred to the Supreme Court seat as belonging to Garland, the chief judge for the D.C. Circuit Court of Appeals, appointed by President Obama to replace the late Antonin Scalia. In an appalling act of extreme partisanship, the Republican-led Senate would not even give Garland a hearing.