Pro-lifers have been burned often enough by Republican appointees to the Supreme Court to be nervous when watching confirmation testimony. Two of Judge Gorsuch’s exchanges raised a few pulses.

First, his comments under questioning from Senator Feinstein are being taken as suggesting that he thinks Roe v. Wade is a settled issue. Here’s a rough transcript:

FEINSTEIN: Good to see you again. Since we’re on Roe, I wasn’t going to begin with this, but I well recall the time we spent in my office and we talked about precedent. And in my opening remarks, I indicated that if anything had super precedent, Roe did in terms of the numbers, and I’ve put that in the record. Here’s why it becomes of concern. The president said that he would appoint someone who would overturn Roe. You pointed out to me that you viewed precedent in a serious way in that it added stability to the law. Could you elaborate on the point that you made in my office on that? GORSUCH: I’d be delighted to, Senator. Part of the value of precedent — it has lots of value. It has value in and of itself because it’s our history and our history has value intrinsically. But it also has an instrumental value. In this sense, it adds to the determinacy of law. We have lots of tools that allow us to narrow the realm of admissible dispute between parties so that we can — people can anticipate and organize their affairs. It’s part of the reason why the rule of law in this country works so well. We have statutes, we have rules, we have a fact-finding process and a judicial system that’s the envy of the world. And precedent is a key part of that because, as the Chairman pointed out when he quoted an old piece of mine, once the case is settled, that adds to the determinacy of the law. What — what was once a hotly contested issue is no longer a hotly contested issue. We move forward.




Here he’s just making a general point about the value of precedent. While the point was prompted by a question that has Roe in the background, there’s no reason to think that Gorsuch believes that Roe in particular needs to be re-affirmed. My own two cents on this question: Truly settled issues are the ones that don’t require frequent declarations that they’re settled.

Second, he told Senator Graham that if President Trump had asked him to overrule Roe, “I would have walked out the door. It’s not what judges do.” I don’t think he’s making a Roe-specific point here, either: He’s saying that it would be improper for a prospective judge to promise to rule in a particular way in a future case.

A bit more on this. I think some of the conventions that have been built up to protect judicial independence are absurd. Judge Gorsuch leans heavily on those conventions when he claims that if he shared his thinking on a constitutional question–such as whether the Second Amendment is rightly read to protect an individual right to own guns–then litigants will have reason to doubt that they are getting a fair and unbiased judge to hear their case. I’m not saying Judge Gorsuch should use these hearings to break this convention. But come on. That’s like saying that litigants can’t trust Supreme Court justices who have previously ruled on cases involving the same issues as theirs. To get a fair hearing, litigants in a gun case would need to have new justices who had never ruled on–or, of course, otherwise suggested what views they hold on–the meaning of the Second Amendment.

But even I think that Gorsuch is right in what he said to Graham: A judge can’t promise a specific desired outcome before he has even heard a case.