In response to the first question posed in his Senate confirmation hearing, Supreme Court nominee Neil Gorsuch said that there is “no such thing as a Republican judge or a Democratic judge – we just have judges in this country.” My guess is that every senator on the Judiciary Committee, particularly the Republicans, knew that what he was saying wasn’t really true, and I’m sure that Judge Gorsuch knew it as well.
As an exhaustive study published in 2006 by Cass Sunstein and other distinguished academics demonstrated, judges appointed by Republicans tend to vote differently than judges appointed by Democrats. It’s not because they “owe” anything to the presidents who appointed them. Rather, it’s because presidents of both parties seek out nominees whose judicial philosophy mirrors their own.
Many cases – perhaps most – are not controversial, so differences in judicial philosophies don’t come into play all that often. But in controversial cases – the kind that often come before the Supreme Court – the differences come into play often enough to make Supreme Court nominations the high-stakes political dramas that they are in our country today.
Judge Gorsuch and every senator on the Judiciary Committee considering his nomination know all of this, of course. After all, if there really were no such thing as Republican judges and Democratic judges, why would Senator McConnell and his fellow Republicans in the Senate have taken the unprecedented step of refusing even to consider President Obama’s nomination of Judge Merrick Garland, a jurist clearly as qualified as Judge Gorsuch for a seat on the nation’s high court?
Judge Gorsuch is clearly a brilliant man. But I’d feel better about him if he had leveled with the American public today and acknowledged that there are such things as Republican judges and Democratic judges. If there were not, Judge Garland would be on the Supreme Court today and Judge Gorsuch would still be in Colorado.