Trump’s Supreme Court nominee opens his testimony with a massive falsehood

If judges aren’t political, why isn’t Merrick Garland a justice?

CREDIT: AP Photo/Pablo Martinez Monsivais
CREDIT: AP Photo/Pablo Martinez Monsivais

Judges, if you believe Trump Supreme Court nominee Neil Gorsuch, are politically interchangeable parts. “There’s no such thing as a Republican judge or a Democratic judge,” Gorsuch said very early in the second day of his confirmation hearing on Tuesday. And he returned to this theme repeatedly in his testimony, denying that he is even permitted to opine on matters of politics — most notably to insist that he could not comment on whether President Obama’s nominee for the vacant Supreme Court seat was treated fairly.

It’s a very pleasant idea, this notion that judges put on a black robe and magically become nonpolitical actors. And, in fairness, it is a falsehood that Democratic and Republican nominees both like to repeat at their confirmation hearings. Gorsuch is hardly the first nominee to make a similar claim.

But his claim that judges are not political is transparently false. If it wasn’t false, Senate Republicans would have simply confirmed Chief Judge Merrick Garland — Obama’s nominee to fill the seat Gorsuch now hopes to fill. After all, why should senators care which president appoints our judges if a Democratic judge is interchangeable with a Republican judge?

Indeed, there’s plenty of data showing that the senators who kept Garland off the Supreme Court were correct in their view that politics matter.

In 2014, for example, the conservative Washington Times examined how judges appointed by Democratic or Republican presidents decided cases seeking to undermine the Affordable Care Act. The data was stark. “Democratic appointees ruled in favor of Obamacare more than 90 percent of the time, while Republican appointees ruled against it nearly 80 percent of the time.”

More scholarly studies confirm the central role ideology plays in judicial decisions. As scholars Lee Epstein, Andrew D. Martin, Kevin M. Quinn, and Jeffrey A. Sega summarized the dominant view among political scientists in 2011, “political scientists see judges as attempting to maximize their ideological preferences by bringing the law in line with their own political commitments.”

Epstein and her colleagues also conducted their own empirical research into how a judge’s political views impact their conduct on the bench, and determined that “a strong relationship exists between ideology and votes” (on the Supreme Court, their data indicates a “correlation of .79.”)

To be sure, this does not mean that many judges decide individual cases based solely on which side their political party would like to see prevail. Gorsuch, for example, used a case involving a horribly mistreated immigrant as an opportunity to opine on why he would like to transfer power from agencies like the Environmental Protection Agency to the judiciary — a top priority for many conservative legal groups. Judges work with broad doctrines, not with fine scalpels, and a liberal doctrine will sometimes benefit a conservative party, or vice-versa.

But there’s no meaningful support for the idea that judges are immune from politics.