As Donald Trump stood in the East Room of the White House on January 31, congratulating himself for delivering “the very best judge in the country” for the U.S. Supreme Court, a man in Missouri was lying on a gurney, with lethal injection drugs entering his veins. The man, 37-year-old Mark Christeson, was declared dead minutes later, at 7:05 Central time. In Washington, Trump continued to speak, with Judge Neil Gorsuch and his wife now standing behind him. With much of the country tuned in to watch Trump’s much-hyped announcement that night, the execution in Missouri flew under the radar. Convicted of a brutal rape and triple murder committed in 1998, Christeson was not someone likely to inspire widespread concern on any given evening. Yet his execution was a reminder of the kinds of cases Gorsuch would review if confirmed to the Supreme Court. Christeson — a lifelong victim of sexual abuse whose IQ hovered as low as 74 — was abandoned by his own post-conviction attorneys, who missed a crucial deadline to file his federal habeas appeal in 2005. When outside lawyers tried to step in to correct their gross neglect, courts blocked them at every turn. As Christeson’s execution approached, a group of former state and federal judges raised alarm about his case, filing multiple amicus briefs to his petitions before the Supreme Court. They warned that Christeson had received no “meaningful federal review” of his sentence. “When the stakes are this high, such failures unacceptably threaten the legitimacy of the judicial process,” the judges wrote. Christeson won a last-minute stay of execution in 2014, with the justices remanding his case back to the lower court. But the reprieve was fleeting. As with many on death row who turn to the Supreme Court for relief, Christeson was ultimately executed, the deep flaws with his case barely addressed, let alone corrected. Over two long days before the Senate Judiciary Committee this week, Gorsuch was never asked his views on the death penalty. More time was spent discussing fly-fishing and rodeos, along with more serious (if redundant) questioning on life and death issues like abortion and euthanasia. This was not particularly surprising; confirmation hearings are mostly political theater — and Gorsuch’s record on criminal justice has stirred little controversy compared to other hot-button issues. Many lawyers and experts expressed a measure of relief when Trump announced Gorsuch as his Supreme Court pick. “I don’t think he’s a fire-breathing, law and order, pro-prosecutor guy,” said Tejinder Singh, the appellate and Supreme Court litigator who won a stay of execution for Mark Christeson in 2014. Yet Gorsuch seeks to join the Supreme Court at a time when the death penalty is in a state of chaos and decline. The issue has sparked some of the most contentious public moments on the bench in recent memory, and with good reason. For all the layers of legal precedent enveloping capital punishment, it is a tradition that has become increasingly hard to uphold, at least in any intellectually honest way. The Supreme Court’s most recent ruling on lethal injection, Glossip v. Gross, was simply embarrassing: After a heated oral argument in which the Oklahoma brazenly misled the justices, the 5-4 decision upheld an execution protocol that is the sloppiest of inventions, rooted in junk science, and peddled by a state notorious at the time for having recently carried out a dramatically botched execution. Glossip’s legacy has been short but grim. Oklahoma’s incompetence and deceit has been further exposed. Botched executions have continued apace. More surreal, the ruling has put people challenging their upcoming execution by lethal injection in the perverse position of having to propose better ways for the state to kill them, from the firing squad to the gas chamber. Add to this the fact that the named plaintiff in the case, Richard Glossip, is almost certainly an innocent man, and the result is a perfectly hideous portrait of our modern-day death penalty system. It was Glossip that inspired Justice Stephen Breyer’s extraordinary dissent listing the myriad reasons the death penalty itself is constitutionally intolerable. More recently, Justice Sonia Sotomayor has questioned whether lethal injection is “our most cruel experiment yet.” Glossip came up just once during Gorsuch’s confirmation hearing, in a brief question from Republican Sen. Jeff Flake. Does Glossip deserve the respect of precedent, he asked? “It does,” Gorsuch said, and that was it. That no senator thought to probe any further was a missed opportunity. In his 10 years serving on the 10th Circuit Court of Appeals, Gorsuch presided over cases that embodied the pitfalls of capital punishment, and even helped pave the way for Glossip. A recent report by the NAACP Legal Defense and Education Fund highlighted two particular areas of concern. One is his complicity in upholding Oklahoma’s disastrous lethal injection regimen, which became the law of the land in Glossip. And the other is complicity in a more systemic problem throughout the criminal justice system: a pattern of favoring finality over fairness. Gorsuch, the LDF warns, has proven all too willing to apply the most rigid barriers for those seeking to challenge unfair sentences, including in capital cases. “Winning federal habeas relief from any judge is a challenge,” the LDF report notes. “Winning federal habeas relief from Judge Gorsuch is a near impossibility.”

Supreme Court nominee Judge Neil Gorsuch arrives for a meeting at the U.S. Capitol in Washington on Feb. 2, 2017. Photo: Saul Loeb/AFP/Getty Images

It would be unfair to hold Gorsuch individually responsible for the death penalty debacles in Oklahoma. Plenty of others have contributed more to the state’s reputation for dysfunction, deceit, and cruelty in carrying out capital punishment. Yet as a 10th Circuit judge, Gorsuch joined important decisions in Oklahoma cases that showed “a disturbing lack of concern about extreme and needless pain and suffering” during executions, in the words of the LDF report. In 2014, Oklahoma famously tortured a man named Clayton Lockett to death. Witnesses to his execution described how he writhed in agony during the bloody ordeal; one official compared it to a horror film. The state hastily revised its lethal injection protocol, then swiftly assigned new execution dates to four men on Oklahoma’s death row. The men challenged the state’s new lethal injection formula, arguing that it put them at risk of “severe pain, needless suffering, and a lingering death,” in violation of the Eighth Amendment. At the center of their argument was midazolam, the first in the three-drug cocktail used to kill Lockett. The drug had replaced the barbiturate sodium thiopental, relied upon for decades by death penalty states. Sodium thiopental, an anesthetic, was traditionally followed by a paralytic agent, in Oklahoma’s case, vecuronium bromide, and then potassium chloride, which caused cardiac arrest. But sodium thiopental had become unavailable years before, in part due to an international anti-death penalty campaign to cut off supplies. States rushed to find a replacement, tinkering with their formulas. For those hoping to mimic the traditional three-drug cocktail, midazolam eventually became the drug of choice. The problem was that midazolam, a benzodiazipane, is most commonly used as an anxiety medication. Although it is used in surgical procedures, pharmacologists warned that its ceiling effect meant that upping the dosage, as Oklahoma did in its revised protocol, made no practical difference; it could not ensure a person would remain unconscious over the course of an execution. As the other drugs took hold, the result would be an excruciating death, a person would be paralyzed, while suffering a sensation akin to being burned alive. Yet Oklahoma forged ahead. Like many states, it turned to dubious pharmaceutical sources for its drug supplies, while insisting that the origins of its execution drugs must be kept secret. Seeking an injunction from a District Court before his scheduled execution in early 2015, Charles Warner and his fellow death row plaintiffs argued that “by attempting to conduct executions with an ever-changing array of untried drugs of unknown provenance,” the state was pursuing “a program of biological experimentation on captive and unwilling human subjects.” The District Court denied the challenge. On January 12, 2015, a three-judge panel of the 10th Circuit Court affirmed, rejecting an emergency motion that would have stayed Warner’s execution. Judge Gorsuch joined the decision. Warner was executed three days later. Witnesses reported his last words were “my body is on fire.” In a cruel twist, Warner had sought a stay from the Supreme Court on the night he was killed, but was rejected, 5-4. In a dissent, Justice Sotomayor criticized the denial, pointing out that the justices were poised to take up the legal challenge to Oklahoma’s lethal injection protocol. “I hope that our failure to act today does not portend our unwillingness to consider these questions,” she wrote. Indeed, just days later, the Supreme Court granted certiorari in the case, too late to spare Warner’s life. A man named Richard Glossip was now the named plaintiff. Oral arguments in Glossip v. Gross took place on April 29, 2015. They were ugly and heated. Justices Samuel Alito and Antonin Scalia railed against anti-death penalty activists for making it harder for states to get better execution drugs. Justice Sotomayor interrupted the Oklahoma solicitor general to say she was “substantially disturbed” by his claims about midazolam’s effectiveness, for which she found zero supporting evidence. The drug had clearly been chosen for its availability rather than its efficacy; state experts used sources like Drugs.com, a website that warns it is “not intended for medical advice, diagnosis or treatment.” An amicus brief from 16 pharmacologists warned the justices that midazolam was not capable of rendering a person unconscious for the purpose of execution. And a key piece of evidence submitted by the state to explain why it chose midazolam was later proved to be false. Nevertheless, in June 2015, the Supreme Court upheld Oklahoma’s protocol, 5-4. Justice Alito authored the opinion, with the circular reasoning that, because the Supreme Court has held the death penalty to be constitutional, there must be a method to carry it out. In her dissent, Sotomayor disagreed. A state “does not get a constitutional free pass simply because it desires to deliver the ultimate penalty,” she wrote. “Its ends do not justify any and all means.” In a perverse postscript to the legal saga over midazolam, autopsy records would later reveal that Oklahoma killed Charles Warner using the wrong drug, a discovery made public only after Oklahoma came close to doing the same with Richard Glossip later that year. Executions have been on hold in the state ever since. Judge Gorsuch may be a bit player in this sorry legal episode, but that does not entirely excuse him. In fact, Gorsuch had an opportunity to weigh in on the mess in 2016, when a lawsuit brought by the family of Clayton Lockett came before the 10th Circuit. As BuzzFeed noted after Trump announced his nomination, Gorsuch joined the panel of judges who rejected the suit, dismissing the botched execution as an “innocent misadventure.” Legal experts pointed out that the phrase, while stunningly callous in context, is nonetheless specific to Supreme Court precedent dating back to 1947, which essentially holds that since executions inevitably go wrong from time to time, individual cases of botched executions do not violate the Eighth Amendment. Such an age-old concept could hardly be blamed on Gorsuch. Nor could a judge so loyal to legal precedent flout the holding. Yet if joining the majority did not distinguish Gorsuch as uniquely craven or cold, nor did it prove him particularly brave or independent. Other decisions have inspired reflection in Gorsuch. He is hailed for thoughtful opinions; he once wrote a concurrence to a ruling he authored himself, a fact brought up repeatedly during his confirmation hearings. Yet he had nothing to say about Lockett’s torturous death. His was simply a vote for the status quo — a measure of how normalized such cruelty has become. The ruling that spawned the notion of a botched execution as an “innocent misadventure” shows us how long states have been torturing condemned people to death, then using the law to explain it away. It came from Louisiana, circa 1946, when a black teenager named Willie Francis survived an attempt by prison officials to kill him in the electric chair. A book on the case recounts how witnesses heard Francis scream, “I am n-n-not dying!” as the current failed to kill him. Francis was removed from the chair and successfully executed several days later. The Supreme Court dismissed his ordeal; today it is a legal footnote. Almost 50 years later, in Baze v. Rees, Chief Justice John Roberts cited the Supreme Court’s ruling in the 1947 case to uphold lethal injection.