March 20, 2017
Sasse opening statement on Gorsuch confirmation
U.S. Senator Ben Sasse offered the following opening statement on the first day of Judge Neil Gorsuch's confirmation hearing in the Senate Judiciary Committee.
The Senator's opening statement, as prepared for delivery, is found below:
Thank you, Mr. Chairman.
This is a special moment in the life of our republic. We have an opportunity to stand back from more than 200 years of history, to evaluate our civic health, and to recommit ourselves to a government that is intentionally limited – to powers that are intentionally distinguished and divided.
That’s what these next few weeks are about. Arguably the most important thing we will do in the Senate this year is confirm the next Supreme Court justice.
I want to focus my opening remarks around a simple image: a judge’s black robe. It’s a strange thing that judges wear robes. But instead of looking past this strange convention, let’s look right at it. For it isn’t just some relic from the past. It isn’t just something people wore long ago in a forgotten era of formality, like a powdered wig.
So why do the robes – often unfashionable and unflattering – persist? The reasons were summed up better than I could put it by one sitting judge. He said:
“[D]onning a robe doesn’t make me any smarter. But the robe does mean something – and not just that I can hide coffee stains on my shirt. It serves as a reminder of what’s expected of us – what Burke called the ‘cold neutrality of an impartial judge.’ It serves, too, as a reminder of the relatively modest station we’re meant to occupy in a democratic society. In other places, judges wear scarlet.... Here, we’re told to buy our own plain black robes – and I can attest the standard choir outfit at the local uniform supply store is a good deal. Ours is a judiciary of honest black polyester.”
The author of these insightful words was Judge Neil Gorsuch. And that statement is an excellent lens through which to frame the work of this Committee this week – and indeed the work of the Supreme Court for the next century and beyond.
I want to make three simple, overlapping points about the judge’s black robe:
One, it changes the way our eyes see the Court;
Two, it reiterates the duty – the calling – of a judge to the judge; and
Three, it gives us an opportunity to teach our kids about our – their – Constitution, our fundamental law, the enduring paper that defines what our government can and cannot do.
First, how it changes the way we look at the Court.
When you look at all nine justices sitting together in their robes, they blend in with one another. It can be hard to tell them apart if you squint. And it thus calls attention to the office rather than the person.
That’s because when a judge puts on his or her robe, it forces their personalities into the background so that we focus instead on the important-but-modest job they do – which is to drill down on the facts and the law.
Facts are objective; they don’t change based on your personality. They are evaluated against written, objective law – not against what the judge wishes the law said.
Some have famously said that empathy is an essential ingredient for arriving at just decisions. This belief is well-meant but woefully misguided. Standing before the court, your gender, your skin, and your bank account cannot decide your fate. Nor should your judges’ race, class, or gender decide your fate. Empathy is not the role of a Supreme Court Justice. It is our job as legislators – men and women who are hired and fired by the American people – to empathize, to identify with people's hopes and struggles. The judge must instead faithfully and dispassionately apply the law to the facts of the case.
The judge’s robe is there to remind both the judges and us of that – that if the facts are on our side, it shouldn’t matter what judge we sit in front of. Our ideal is a Court where you can trade out one judge for another and get the same outcome.
This is at the heart of what we mean when we say we want the rule of law, not the rule of men – or women, or black or white, or rich or poor. We want the rule of law – not of judges’ passions, not of judges’ policy preferences.
Here’s the second reason for the black robe: it helps explain the calling of a judge – to the judge.
By way of loose analogy, lots of folks sat in church pews yesterday and listened to someone preach from behind a big wooden pulpit while wearing a robe. Why the pulpit; why the robe? Because these things make it harder to see the preacher.
They help us in the pews understand it’s not about the messenger, but about the message being passed on from above. And it helps the minister get the same point.
Likewise, a good judge on the bench knows…
It’s not about you - so don’t make it about yourself.
I said it was a loose analogy because the job of Supreme Court justice is absolutely not to deliver an eternal message from God. It’s to interpret a written, man-made Constitution as objectively and faithfully as they can, inserting their own opinions as little as possible.
When you put on that robe, you are also cloaking your personal preferences. There’s not a red robe for Republicans; there’s not a blue one for Democrats. We issue only black robes.
This brings us to a third and final point, which is that the judge’s robe helps us teach our kids how to understand our – their – Constitution.
As all of us learned in School House Rock, the judiciary is not only a separate branch of government from the President and the Congress, but also a co-equal one. We have different functions but the same responsibility to uphold our constitution. As a co-equal, the court can examine whether the actions of the other two branches are unconstitutional.
Time and again in our nation’s history, the Court has struck down laws passed by Congress or put a stop to a president’s executive actions.
Here’s what that means: the primary job of the Supreme Court justice is not to uphold the will of the majority of the moment. The primary job of the Supreme Court is not to reflect the popular opinions of the day.
That may come as a surprising statement. Don’t we live in a democracy where majorities rule? The answer to that question is only a qualified yes – there are critical limits.
The Constitution is a decidedly anti-majoritarian document in wonderful and important ways that intentionally protect our rights and our liberties. And the role of the Supreme Court – in protecting those rights and liberties - is sometimes precisely to frustrate the will of a majority.
Let’s unpack this by looking at how the Constitution deals with religion.
The First Amendment prohibits the government from establishing any state religion, and guarantees that every citizen can worship – or not worship – however they want. If, somehow, polling showed a 51% popular desire to pass a law making church attendance mandatory, or to subsidize a particular religious denomination, the Supreme Court would rightfully strike down such laws.
This is because in the Constitution we decided to limit our own power. We the people decided at the founding of our nation to restrain our own majoritarian impulses. By enacting a Constitution, we intentionally tied our own hands so that there are certain things the majority may never do, like invade someone’s conscience. And if the majority - in its arrogance - should cross the line, the Supreme Court rightfully says no.
When Congress passes an unconstitutional law, it is, in fact, Congress that violates the longer-term will of the people. The judiciary is there to assert the will of the people (embodied in our shared constitution) over against that unconstitutional but temporarily popular law.
Each branch serves the people but in unique ways. It is the job of Congress and the President to act. It is the job of the Court at times to react. Each branch holding the others in check. Each branch faithfully upholding the Constitution. Each branch serving the American people.
When a Supreme Court justice puts on his or her black robe, we don’t want them confusing their job for those of the other branches. We want them policing the structure of our government to make sure each branch does its job, and only its job.
Today, Judge Gorsuch is wearing a suit and tie. Before he can put on that black robe he must answer this committee’s questions. I expect that Mr. Gorsuch, the citizen, has policy preferences and desired outcomes. I also expect that by the end of this week it will be clear that Judge Gorsuch, the judge’s judge, will faithfully embody the spirit of that black robe.
With that, I yield back.