Senate Minority Leader Chuck Schumer titled his recent New York Times Op-Ed column "We Won't Be Fooled Again."
He writes: "When I met with Judge Gorsuch on Feb. 7, I sought to ascertain his potential to be an independent check on the president. The judge was clearly very smart, articulate and polite, with superb judicial demeanor. But over the course of an hour, he refused to answer even the most rudimentary questions."
This isn't just partisan posturing; Sen. Schumer has every reason to be suspicious.
Many justices who have served over the past half-century have surprised both the public and the presidents who nominated them. Democrat Byron White turned out to be much more conservative than John F. Kennedy ever anticipated. Republican Harry Blackmun, nominated by Richard Nixon, wrote the Roe v. Wade majority opinion. Republican Sandra Day O'Connor came to play the role of centrist — no doubt a disappointment to the Reagan administration. Republican John Paul Stevens, a Gerald Ford nominee, became the most articulate liberal voice on the court. Republican David Souter, nominated by George H.W. Bush, turned out to be more Yankee than conservative.
What all these pre-John Roberts "surprise" justices had in common was their independence of mind. But then came George W. Bush, with his nominations of Roberts and Samuel Alito, sealing the deal that Antonin Scalia, Anthony Kennedy and Clarence Thomas had begun. Vetting and ideological reliability had declared war on independence of mind.
On the most contentious issues, such as women's reproductive rights, these carefully vetted judges vote as a bloc so often and so predictably that women's rights groups fear the end of Roe v. Wade could be near — this despite promises that all these "conservative" justices made at their respective confirmation hearings, illustrated below by excerpts taken from the testimony of Roberts and Thomas:
SEN. ARLEN SPECTER [From John Roberts' 2005 Supreme Court confirmation hearings]: Judge Roberts, in your confirmation hearing for the circuit court you testified: "Roe is the settled law of the land." Do you mean settled for you, settled only for your capacity as a circuit judge, or settled beyond that?
JOHN ROBERTS: Well, beyond that. It's settled as a precedent of the court, entitled to respect under principles of stare decisis. And those principles, applied in the Casey case, explain when cases should be revisited and when they should not. And it is settled as a precedent of the court, yes.
SPECTER: You went on to say then, "It's a little more than settled. It was reaffirmed in the face of a challenge that it should be overruled in the Casey decision, so it has added precedential value."
ROBERTS: I think the initial question for the judge confronting an issue in this area, you don't go straight to the Roe decision. You begin with Casey, which modified the Roe framework and reaffirmed its central holding.
SEN. JOE BIDEN [From Clarence Thomas' 1991 Supreme Court confirmation hearings]: Does the 14th Amendment protect the right of women to decide for themselves in certain instances whether or not to terminate pregnancy?
CLARENCE THOMAS: My view is that there is a right to privacy in the 14th Amendment.
BIDEN: Well, does that right to privacy protect the right of a woman to decide for herself in certain instances whether or not to terminate a pregnancy?
THOMAS: The Supreme Court has made clear that the issue of marital privacy is protected, and in the case of Roe v. Wade has found an interest in the woman's right to terminate a pregnancy. I do not think that at this time that I could maintain my impartiality as a member of the judiciary and comment on that specific case.
Even when grilled, you get the dance around the truth. It's hard to see what's inside the nominees' minds as they parry questions with nuggets of what the questioners hope to hear.
And we need not begin and end with reproductive rights. There are voting rights, immigration policies, health care — you name it; it's all at stake.
Sen. Schumer asserts that it remains for Judge Gorsuch to convince the Senate that he truly will bring an independent mindset to his work. He wants more proof than a single rebuke of President Trump, as Gorsuch offered last week — although plainly that's a start. Fundamentally, Schumer doesn't want to be lied to again.
Much is at stake. Trump has already shown utter disdain for people who exhibit an independence of mind. He threatens, and blusters, and seemingly has no coherent take on much of anything. Thus, it's not overblown to say that our governing institutions and very separation of powers depend greatly on the members of the Supreme Court holding tight to their independence of mind. ♦