What senators should ask Neil Gorsuch
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“In recent years, the Supreme Court has become the most powerful, least accountable part of our federal government, as the justices have picked our president, allowed the extremely wealthy to greatly influence our elections and made countless decisions of life and death. In your view, has the court become too powerful?”

This single question, which a Judiciary Committee senator should ask Judge Gorsuch during his confirmation hearing later this month, would lay bare the grave concern both the left and the right have over the outsized role the judiciary now plays in our governance. It would give the nominee an opportunity to present his thoughts on whether the court’s free hand in choosing its docket has accelerated a political polarization not seen in the U.S. in generations. 

And it would help the public consider what restrictions should be placed on its authority.

If asked, it may be the most illuminating question of the hearing, and here’s why:

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To start, the Supreme Court alone decides which 70 or so cases it will resolve each year, giving it unprecedented power to set the national agenda. With a court whose justices today mirror the partisan divide that plagues our political branches, and with only four votes needed for a review, each bloc – that’s Justices Ginsburg, Breyer, Sotomayor and Kagan on the left and Justices Scalia (before he passed away), Thomas, Roberts and Alito, with occasional assists from Kennedy, on the right – can band together and choose to hear any number of issues that, in less partisan times, were typically the province of legislators and executives.

 

Once a case is granted, that all-important, issue-winning fifth vote is only one justice away. In the last few years, a key part of a major voting rights bill that Congress reauthorized nearly unanimously went on the chopping block, 5-4, much to liberals’ dismay.

State marriage laws nationwide were invalidated, 5-4, over many conservatives’ objections. Voters from both sides were flummoxed by a new court doctrine that, 5-4, has allowed unprecedented levels of money to flood elections.

Meanwhile, the legislative and executive branches have been engaged in a race to the bottom, as the last 20 years have yielded, among other embarrassments, a presidential impeachment, a misguided war, a Minority (now Majority) Leader putting party over country, a Democratic majority preferring legislative speed to a sustainable recovery and politicians from both sides who, thanks to gerrymandering, are now choosing their voters, rather than the more traditional other way around.

The power vacuum created by constant gridlock within and between the political branches has been filled, of course, by the Supreme Court. With the presidency as of this writing mired in chaos and litigation and unlikely to make many of the sweeping changes it promised, the court-centric power dynamic in Washington may not effectively change anytime soon.

Here’s a hint at how Gorsuch should respond if asked about this state of affairs: since those in power rarely, if ever, give up that power voluntarily, the way to reestablish equilibrium among the branches is to ensure that those few men and women exerting undue influence are held accountable.

That means Supreme Court justices should not own stock in companies that come before their court as litigants. They should not be speaking at partisan fundraisers. They should abide by a code of conduct. And they should be required to undergo annual cognitive assessments to ensure that none of them is suffering from mental decline.

The way in which Gorsuch answers the power question will say more about his attitude toward his likely next job than any query about abortion or campaign finance reform or same-sex marriage – i.e., issues he is sure to sidestep. He could send a potent signal to his potential colleagues even by merely acknowledging the current imbalance – whether or not the institution these days is technically “most powerful.”

Should the Senate – or Gorsuch – be successful in shining a light on the high court’s shortcomings, more Americans will be inclined to look at its docket and its decisions with a critical eye.

If there’s one theme to 2017 so far, it’s this: greater scrutiny is a good thing, no matter who sits in the halls of power.

Gabe Roth is executive director of Fix the Court, a national nonpartisan organization that advocates for a more open and accountable Supreme Court.


The views expressed by contributors are their own and are not the views of The Hill.