Podcast Summary: "Why It’s Worth Opposing Gorsuch"

Amicus With Dahlia Lithwick | Law, justice, and the courts
Host: Dahlia Lithwick, Slate Podcasts
Guests: Senator Sheldon Whitehouse, Tom Rosenstiel
Date: March 18, 2017

Episode Overview

This episode explores the contentious confirmation of Supreme Court nominee Neil Gorsuch, the political stakes surrounding his appointment, and the broader implications for the integrity of the Supreme Court. Dahlia Lithwick interviews Senator Sheldon Whitehouse, who sits on the Senate Judiciary Committee, on why opposing Gorsuch is significant beyond the individual nominee. Later, she transitions to a conversation with journalist-turned-novelist Tom Rosenstiel about his timely legal thriller, "Shining City," which delves into the machinations behind Supreme Court confirmations.

Interview with Senator Sheldon Whitehouse (00:33–20:13)

The Stakes of Neil Gorsuch’s Confirmation

• Why Gorsuch’s Confirmation Truly Matters (02:29–05:34)

  • Whitehouse argues that any Supreme Court nomination during this period is significant due to a pattern where a Republican-appointed majority tends to side with big special interests, reshaping economic, judicial, and political systems to their advantage.
    • “Americans have a lot at stake in having a court that goes back to being a court again and doesn’t turn itself into a delivery system for big special interests.” (02:56, Whitehouse)
  • The significance is amplified because the Republican Senate majority, by refusing to give Merrick Garland a hearing, transformed a constitutional process into "a power play," calling for Democrats to use the hearings to educate the public on the deeper problems at play.

• Legitimacy of the Hearing after Garland’s Blocked Nomination (04:00–05:34)

  • Whitehouse acknowledges the frustration over legitimizing GOP obstruction but insists that showing up to the hearings is essential to “make a really strong case to the American public...about what has gone wrong with the court and why.” (04:46)

Tracing the Influence of Money and Power

• Connecting the Dots: Citizens United and Special Interests (07:28–09:33)

  • Whitehouse draws a straight line from big money’s influence (as seen in Citizens United and subsequent decisions) to judicial outcomes, McConnell’s obstructionism, and the very nomination of Gorsuch.
    • “In cases that pit corporations…against human beings, it is 17 to 0 in favor of corporations in those five to four decisions…That makes a kind of sordid triangle of influence.” (08:24, Whitehouse)
  • Lithwick notes Gorsuch’s record doesn’t offer much on Citizens United, but Whitehouse counters that Gorsuch, in the Hickenlooper case, endorsed strict scrutiny for political donations, which signals he would likely “come down on the side of the influencers” (09:45–10:31).

• Public Distrust and the Court’s Reputation (10:31–12:26)

  • There’s broad bipartisan dissatisfaction with Citizens United; Whitehouse points out, “85% of Americans think it’s a horrible decision.” (10:45)
  • This has left Americans believing that “a corporation is likely to get a fairer shake from the Supreme Court over a human being rather than vice versa.” (10:55)

The Powell Memo and the Conservative Legal Project

• Historical Context: Powell Memo as Blueprint (11:12–13:27)
  • Lithwick draws on the 1971 Powell Memo, suggesting that today’s Roberts Court is the “full flowering” of its vision for corporate dominance.
    • Whitehouse agrees, quoting major court watchers who see the Court as partisan and ideological, e.g., “Chief Justice Roberts has served the interests and reflected the values of the contemporary Republican Party.” (12:52, citing Jeffrey Toobin)

Framing the Gorsuch Debate: Mainstream vs. Special Interests

• Is There a Judicial ‘Mainstream’? (13:27–15:47)
  • Both Lithwick and Whitehouse reject “mainstream” as a meaningful standard, focusing instead on the battle between unprecedented special interest capture and public frustration.
    • “Everybody brings their own mainstream to the debate…there ain’t no mainstream.” (13:55, Lithwick)
  • The critical question is whether the Court will act as a neutral, independent body or continue to side with the powerful.

Erosion of Norms and Democratic Danger

• Destabilization of Judicial Norms (15:47–17:35)
  • Lithwick and Whitehouse discuss the dangers of accepting the Supreme Court as a mere political entity, warning that to do so would erase “the wonderful joy and luxury of living in an honest government.”
    • “For this generation to blow it, I think would be a really significant disgrace in history’s judgment.” (16:32, Whitehouse)

Should Gorsuch Bear the Sins of Trump? (17:35–20:07)

• Presidential Responsibility and Judicial Independence
  • Whitehouse argues the focus must remain on Gorsuch’s record, not Trump’s controversies.
    • On Trump: “He gets up in the morning, he tweets a bunch, he watches the news…but in the meantime, Vice President Pence and the Koch brothers operation are all carefully just laying the groundwork for...the running of the government.” (19:19, Whitehouse)
  • The big questions are whether Gorsuch will continue the special interest agenda or bring balance.

Conversation with Tom Rosenstiel: The Mechanics and Morality of Confirmation Drama (21:04–44:18)

Shining City: Fictionalizing the Confirmation Circus

• Why Fictionalize the Supreme Court Confirmation? (21:05–23:41)

  • Rosenstiel chose the topic because “so much of it is cynical and a kind of kabuki theater…a great way of capturing kind of the inner hidden Washington.” (21:20)
  • His protagonists—fixers often maligned as amoral—serve as truth-tellers and carry the story’s moral core.

• Parallels Between Life and Fiction (24:40–27:40)

  • Rosenstiel describes the eerie timing: the writing was completed before Scalia’s death, and his novel’s justice dies the same day as Scalia.
  • The fictional president, Jim Nash, seeks to nominate a true moderate, a constitutional “essentialist,” reflecting a yearning for independence and consensus lost in today’s polarized process.

The ‘Essentialist’ Judge: A Third Path

• Inventing a Middle Ground (27:09–30:23)
  • The fictional nominee’s philosophy—"essentialism"—sees the Constitution as a compromise, not sacred text:
    • “Rather than some kind of biblical text, it’s just what people at that time agreed to...original intent is simply to get a government created.” (27:55, Rosenstiel)
  • The character’s independence leaves him with weak partisan support, echoing the plight of real-life moderate picks like Merrick Garland.

Judicial Experience—From Academia to the Trial Bench

• The Value of Real Trial Experience (31:36–34:37)
  • Rosenstiel’s nominee is unique for seeking actual trial experience, shaping his empathy and pragmatic outlook.
    • “He actually sat on mundane trials and dangerous trials and murder trials.” (33:16, Rosenstiel)
  • Lithwick highlights the impact: “This is what is missing in the conversation around who is a viable Supreme Court nominee.” (31:36, Lithwick)

Moderation and the Machinery of Partisanship

• A Love Song to Moderation (34:37–37:44)
  • The novel’s theme is a plea for moderation in Washington’s polarized world:
    • Rosenstiel: “There is a covert center in Washington, but those people do not talk about it...It would make it very difficult to get reelected.” (36:19)
  • The machinery of confirmation—a pre-scripted, interest group-driven theater—drowns out actual debate.

Generational Changes and the Vanishing Center

• Old Hands vs. Young Firebrands (37:44–39:32)
  • The novel depicts veteran lawmakers as brokers of compromise—a dying breed, as younger members are less inclined to cross the aisle.

The Confirmation Process: Kabuki in a Surreal Present

• The Rituals Remain, Despite an Unusual Era (39:32–44:18)
  • Lithwick and Rosenstiel discuss how the “funhouse tunnel” of confirmation rituals persists unchanged, even as the country enters new political territory with the Trump administration.
    • “They are told, you know, don’t answer these questions substantively. This is not a national course on jurisprudence. They are taught how to be evasive…” (41:30, Rosenstiel)
  • Rosenstiel notes how the advent of interest groups and money have overtaken the process, compared to the world of “Advise and Consent” (1959): “There are no interest groups, no staffers, and the words Republican and Democrat never appear in the book.” (42:50)

Memorable, Concluding Insight

• What Would Fix the Process? (43:33–43:52)
  • In answer to Lithwick’s question, Rosenstiel’s single change: “Pick a moderate.” (43:51, Rosenstiel)

Notable Quotes and Moments

• “When five Republican appointees get a Supreme Court majority...we’ve seen significant torquing...in favor of really big special interests.” (02:29, Whitehouse)
• “Everybody brings their own mainstream to the debate…there ain’t no mainstream.” (13:55, Lithwick)
• “For this generation to blow it, I think would be a really significant disgrace in history’s judgment.” (16:32, Whitehouse)
• “Perception is not reality. Facts are reality.” (22:59, Rosenstiel)
• “Pick a moderate.” (43:51, Rosenstiel)

Key Timestamps

• [00:33] Introduction to the episode and Senator Sheldon Whitehouse
• [02:29] Why the Gorsuch fight matters and the special interests at stake
• [07:28] Drawing connections: Citizens United, big money, and the Court’s direction
• [11:12] The Powell Memo and intentions behind a partisan Court
• [15:47] On the dangers to democratic norms and legitimacy
• [17:35] Should Gorsuch bear responsibility for Trump’s actions?
• [21:04] Tom Rosenstiel on why he wrote "Shining City"
• [27:09] Invention of a judicial ‘middle way’—essentialism
• [31:36] Importance of real judicial experience
• [34:37] Novel as an advocacy for moderation and the vanishing center
• [39:32] The confirmation process as theater in the age of Trump
• [43:51] If only one thing could change: “Pick a moderate.”

Final Thoughts

This episode offers a compelling dissection of why Gorsuch’s nomination is more than the sum of his own record, probing the broader implications for democracy, the court’s legitimacy, and the role of moderates in a time of growing partisan machinery. Both the real-world interview and the fictional narrative discussed highlight both the perils of captured institutions and the nostalgia for truly independent, practical, moderate judges.