Turow’s Reversible Errors—Part 1

by Ed Whelan

In a piece for Vanity Fair titled “How the Democrats Can Stop Neil Gorsuch: And why they absolutely must,” lawyer-turned-novelist Scott Turow amply demonstrates that he’s more suited to fiction-writing than to legal analysis.

The author of Reversible Errors, Turow commits quite a few of his own:

1. Turow asserts that Supreme Court nominee Neil Gorsuch “is filling a seat that by any objective reading of the Constitution belongs to Merrick Garland.” He claims that Republicans, in declining to take any action on President Obama’s nomination of Garland, “read … out of the Constitution” the Appointments Clause set forth in Article II, section 2. In particular, he asserts that they “refused to fulfill [their] constitutional mandate” when they “refused to allow a vote on whether or not to confirm him.”

Far from being dictated “by any objective reading of the Constitution,” Turow’s gross misreading of the Appointments Clause is so “silly” and “obviously fatuous” that no reasonably well-informed person could intelligently advance it in good faith. As I have explained repeatedly, the Appointments Clause restricts the president’s power to appoint executive-branch and judicial-branch officers by conditioning any such appointment on prior receipt of the Senate’s “Advice and Consent” on a nomination. It says nothing about how the Senate should go about exercising its power to advise and consent-or-withhold-consent, and it thus leaves the Senate entirely free to exercise that power however it sees fit. (Indeed, the Framers rejected the alternative of requiring the Senate to vote down a nomination in order to block it.) It also doesn’t require Senate hearings on anything.

The Appointments Clause applies to Supreme Court nominations in exactly the same way that it applies to other presidential nominations. Senate practice has routinely defeated nominations by inaction. So Turow’s claim that Republicans had a “constitutional mandate” to “allow a vote on whether or not to confirm” Garland has zero basis in the Constitution’s text and contradicts the Senate’s longstanding practice on nominations subject to the Appointments Clause.

But if you’re disinclined to think through this yourself and don’t want to take my word for it, how about (among countless others) liberal law professor, and Supreme Court confirmation expert, Michael Gerhardt or President Obama’s former White House counsel Kathryn Ruemmler?

2. In support of his assertion that Gorsuch is “extremely conservative,” Turow cites two studies. One, in the best tradition of modern junk social science, ranked the candidates on President Trump’s Supreme Court list by this “tried-and-true [insert hilarious laughter] approach”:

• If a judge is appointed from a state where the president and at least one home-state senator are of the same party, the judge is assigned the ideology of the home-state senator.

• If both senators are from the president’s party, the judge is assigned the average ideology of the two senators.

• If neither home-state senator is from the president’s party, the judge receives the ideological score of the appointing president.

So, you see, don’t bother actually trying to take a serious look at Judge Gorsuch’s judicial record over ten years. You can just assign him the “ideology” of Wayne Allard, who was the Republican senator from Colorado when George W. Bush appointed Gorsuch.

The second “study” that Turow finds so probative looks only to the “political donations made by federal judges before taking their seats.” Such donations may surely offer some insight (even if imperfect) into a judge’s preferences for political candidates, but it’s difficult to see why anyone would look to them to measure a judge’s judicial record.

3. Turow complains of the “rank partisanship” of the National Review essay that Gorsuch wrote in 2005 lamenting the Left’s “overweening addiction to the courtroom as the place to debate social policy.” Never mind that Gorsuch was expressly endorsing the critique made by David von Drehle, a Washington Post columnist and “self-identified liberal.” What Turow finds “infuriating” is that Gorsuch failed to “recognize that conservatives have been equally, if not more guilty[,] of the same thing”—and Turow cites the “conservative effort to eradicate gun control, to allow for unlimited campaign spending, [and] to overturn Obamacare” as examples.

I’ll pass over for now the merits of Turow’s examples and limit myself to the observation that I don’t see how he can fault Gorsuch for writing an essay in 2005 that fails to address or distinguish conservative litigation efforts that occurred (or at least became prominent) only years later.

4. Turow imagines that Gorsuch’s “supposed sympathy to [sic] legislative judgments” is belied by his Tenth Circuit vote in the Hobby Lobby case. But Turow gets Hobby Lobby wrong.

Turow says that Gorsuch “struck down on grounds of freedom of religion those provisions of the Affordable Care Act that obligated employers to pay for their employees’ contraceptive care.” The trusting reader would think that Gorsuch ruled that a provision in Obamacare violated the First Amendment’s Free Exercise guarantee. But the HHS contraceptive mandate was an Obama administration regulation, not a statutory provision. And Gorsuch and his Tenth Circuit colleagues ruled (as the Supreme Court majority did) on the basis of the federal Religious Freedom Restoration Act, not the First Amendment. Further, they did not strike down the regulation; they held merely that RFRA meant that it could not be applied to Hobby Lobby.

In short, contrary to Turow’s confusion, Hobby Lobby illustrates Gorsuch’s respect for “legislative judgments.”

More in Part 2.

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