“Well qualified.” When you’re hiring someone for a job, that’s what you want them to be. Right?
That is the rating the American Bar Association gave to President Trump’s nominee for the Supreme Court, Neil Gorsuch, last week. With hearings starting on Monday, what will we see?
Spoiler alert: he will be confirmed. The only question is the vote total.
Unfortunately, the very fact that the vote total is in question is an indictment of politics today. Sen. Charles Schumer of New York has started to attack Gorsuch, bringing out stories of individuals who were treated poorly by their employers. One such story is that of Ms. Grace Hwang.
Hwang was an assistant professor at Kansas State University, a former corporate lawyer holding a law degree from Georgetown. She was diagnosed with cancer. The school provided 6 months of paid sick leave for her to receive treatment; when it turned out she needed more time off, they arranged for long-term disability benefits for Hwang. However, they ended the professor’s employment. The school believed they could not make reasonable accommodations for Ms. Hwang to do her job, because, upon medical advice, she could not come to campus to teach.
It was an awful situation, one you would not wish on anyone. Judge Gorsuch acknowledged that, but his 2014 ruling was in favor of the school. The requirement of reasonable accommodation under federal law is predicated on an employee being able to complete the “essential functions of the job” with the accommodation in place. Ms. Hwang couldn’t; that is why she received disability benefits. Her cancer ultimately returned, and she passed away from leukemia last year.
Unfortunately, the role of a judge requires reason free from passion. Gorsuch applied the very text of the statute duly passed by Congress, consistent with decades of case law. That approach is one of the reasons he was found “well qualified.”
But with this case in hand, Schumer now claims Gorsuch has an “instinctive reaction to side with big, special corporate interests.” Really? A public university is now a “big, special corporate interest?” Someone better tell Orono.
Remarks like that are dangerous. They lends credence to the idea that judicial nominees should have preconceptions, rather than apply the law dispassionately. It is why you have demands or promises, as the case may be, for a pro-choice judge. Or a pro-life one. Or a pro-business jurist. Or pro-whatever other cause a group may support. They are all equally wrong, conflating the role of a judge with that of a legislator.
But Schumer’s remarks are also disingenuous. In 2006, when President Bush first nominated Gorsuch to the bench, the 18-person Senate Judiciary Committee held a hearing. Membership included not only Schumer, but also liberal icons such as Ted Kennedy, Pat Leahy, and Joe Biden.
Did they explore Gorsuch’s philosophy and approach then?
Of the 18 United States senators responsible for vetting judicial candidates, only 1 attended the hearing: Sen. Lindsay Graham, R-South Carolina. When Gorsuch came before the Senate for a vote, nary a peep was raised against him.
The only reasonable argument raised thus far against his nomination is “Merrick Garland,” President Obama’s nominee. He was also found “well qualified.”
No two ways about it; Garland’s nomination failed because of politics. Since 1970, he is only the second person to receive a “well qualified” rating and not take a seat on the highest court. The other? Robert Bork. Biden, Kennedy, and others torpedoed that nomination for the same reason the GOP tanked Garland: politics.
But now each side — Republicans and Democrats — have received their pound of flesh. They’ve each sunk one nominee on grounds other than qualification. Let’s be done with it, and put “well qualified” nominees on the court, as we did with Justices John Roberts, Samuel Alito, Sonia Sotomayor, and Elena Kagan.
If you believe Aristotle, the law is reason free from passion. It is the role of the Supreme Court to apply the law as it is, not as they wish it to be. Neil Gorsuch appears to understand both of those well. That is why he was found “well qualified,” it is why he will be confirmed, and it is why he will prove to be a fine Supreme Court Justice.