“I can’t claim I’m perfect,” he explained, “but I’ve tried awful hard.”
“Goodness, no!” he answered many questions. “Goodness, no!” “Oh goodness, Senator, yes!”
There is no virtue he holds in higher regard than humility. As he told Sen. Ted Cruz (R-Tex.) about Byron White, “I wouldn’t have become a judge but for watching his example. And the humility with which he approached the job, and I don’t mean a phony humility, I mean a real humility, every day. He always said two heads were better than one. He’d sit down on my office, plunk himself down in a chair across the desk, and we’d talk about a case. … So what does the great Justice Gorsuch think about this one? … As he was working through each case himself, he’d want to bounce ideas off of this know-nothing 20-year-old, 20-something-year-old kid. And that, to me, taught me everything about what it means to be a judge.”
What a powerful illustration of humility: a tale of a wise jurist who came to a 20-something Gorsuch suspecting that, after all, young Justice Gorsuch might know best.
It was good to have him there to explain that he was neither God nor perfect, as a sub-Gorsuch mind might easily have become confused after listening to a few hours of his testimony. With an Endlessly Patient Smile he explained the law, federalism and the function of the legislative branch in simple terms that even a senator could understand. Some chafed at this treatment, briefly.
“Justice Jackson wrote a brilliant opinion in Youngstown. Now, it’s really important to know who he was,” Gorsuch began.
“I wrote a paper about him, so I know it,” Sen. Patrick Leahy (D-Vt.) mumbled.
“I know,” Sen. Amy Klobuchar (D-Minn.) said, trying to stop him in the midst of explaining his Riddle v. Hickenlooper ruling, “I really do. I read the case.” He would not be stopped, and several more paragraphs ensued (“This was an equal protection challenge, okay?”) until she at last cut him off: “Okay, all right, I really did read it.”
Gorsuch even helpfully explained to Sen. Ben Sasse (R-Neb.), a Yale PhD, what E pluribus unum meant. (“Out of many, one.”)
On the bright side, for senators not used to having their jobs explained to them at length by someone who seemed to feel that he was doing them a favor, this offered a fun taste of what it is like to be a woman every day. Gorsuch often works to build compassion in these ways.
“I’m not here to tell you it’s easy,” Gorsuch said, “and I’m not here to tell you I’m perfect, okay? I’m a human being. I’m not an algorithm, but I try really hard, and it’s almost like an athlete. It’s something judges practice and hopefully we get better at it with time.”
If appointed to the highest court in the land, he will bring all the compassion and humility that has characterized his jurisprudence thus far. And that humility is great. He hopes that his tombstone will say no more than what Increase Sumner’s said. “I’d like to be remembered as a good dad, a good husband, a kind and mild in private life, dignified and firm in public life. And I have no illusions that I’ll be remembered for very long. Not if Byron White is as nearly forgotten as he is now, as he said he would be.” If Byron White can be forgotten, who is Neil Gorsuch to hope for immortality? No, he knows that his legacy will be no greater than that of Pharaoh Ramses, now buried under sand.
“Gorsuch may be the closest thing to a Rand character reality has ever produced,” admiringly tweeted @liberty_elizhy. Exactly.
Would he rule against the president who appointed him? “That’s a softball.”
“No man is above the law,” he repeated over and over with his ever-patient smile.
Asked for whom he wrote his decisions, he was ready with an answer: “Myself.”
Sasse commented that his adviser told him to write his dissertation to a picture of his aunt: “She’s smarter than I am, but she knows nothing about my topic. And he said, ‘If you recognize that your audience should be smarter than you but ignorant of the subject matter, you’re finally gonna find your voice.’ ” Gorsuch replied, “I think if you’re sitting and writing your dissertation for yourself with a picture of your aunt, you’re right on target because I think if I’m writing for myself and trying to persuade myself, then I figure everybody will be able to at least track what I did.”
What would be the point of writing for anyone other than Gorsuch? Who could possibly know better?
This is what privilege looks and sounds and smirks like. It is the erroneous sense that you are sitting at the top because the world is a meritocracy. In this regard, Gorsuch and President Trump are two sides of the same coin. When you are blessed with great success and good luck, it is easy to think that everything good that has ever happened to you is because of your outstanding virtue. You deserve whatever comes to you. And when other people fail to rise, it is because they are — well, they are not perfect.
Still, as we learned during the hearings, Gorsuch has lived in the world. He skis. He fishes. He spent time at Oxford. He is an Episcopalian. And he has read David Foster Wallace. I am sure he understands suffering.
And this is evident in his rulings — as with his empathy for a trucker who got caught in a blizzard and almost froze to death in his van. TransAm driver Alphonse Maddin missed a rest stop and pulled to the side of the road. The brakes on his trailer froze, making it impossible to move the truck and trailer together. Anyone who “refuses to operate a vehicle because … the employee has a reasonable apprehension of serious injury to the employee or the public” is protected by law. Unfortunately, Maddin, after radioing for help and waiting in his unheated cab for more than two hours in a blizzard as his body went numb, chose to unhitch the trailer and drive his truck to safety. Six judges found that this was within the definition of refusing to operate his vehicle. Not Gorsuch. As he pointed out, “Imagine a boss telling an employee he may either ‘operate’ an office computer as directed or ‘refuse to operate’ that computer. What serious employee would take that as license to use an office computer not for work but to compose the great American novel? Good luck.” As Jed Hanselman Shugerman noted in Slate, Gorsuch’s background gave him a wonderful understanding of what was at stake. Life? The great American novel? What difference is there? Indeed, “There’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid,” Gorsuch wrote. “Maybe the [Labor] department would like such a law, maybe someday Congress will adorn our federal statute books with such a law.” Adorn! But, in the meantime, how could they do otherwise than fire the trucker, who, after all, had OPERATED his truck to drive away? Who did he think he was? God? Neil Gorsuch?
No, I do not wish to malign Gorsuch unjustly with such a comparison. He has suffered enough. After all, the confirmation process has not been pleasant for him. “There is a lot about the confirmation process today that I regret,” he explained. “A lot.”
“When Byron White sat here, it was 90 minutes. He was through this body in two weeks. And he smoked cigarettes while he gave his testimony.” And no caviar was offered to him during the lunch break, not even at room temperature.
Pity Gorsuch, who was required to spend more than 90 minutes testifying before the Senate (of all vile bodies!) before he could be given a lifetime appointment to the highest court in the land! And not allowed a single cigarette — not even one in a regular holder that was not made of gold and ivory.
“There is a great deal about this process I regret,” Gorsuch continued. “I regret putting my family through this.”
Yes, the questions about his family! “Where does your family vacation?” asked Sen. Jeff Flake (R-Ariz).
“So, besides fishing, have they ever played sports?” Sasse wanted to know.
Really, he deserves an apology for being so put out. This may be the hardest Gorsuch has ever had to work for anything in his life.