When he accepted the President’s nomination to Supreme Court, Judge Neil Gorsuch went out of his way to praise other judges for adhering to “their judicial oaths to administer justice equally, to rich and poor alike.” Gorsuch’s understanding of that same oath could shape decades of precedent on everything from access to courts to the imposition of criminal fines. So, during his confirmation hearings, the Senate should ask Gorsuch what he understands his oath to mean—particularly the part about doing “equal right to the poor and to the rich.”
In a forthcoming article, I discuss the history of the judicial oath’s “equal right” principle, including its role in recent confirmation hearings. For instance, when then-Judge John Roberts was nominated to the Court, Senator Richard Durbin asked about the relationship between being a Justice and doing justice: should a federal judge “take into consideration that in our system of justice the race goes to the swift, and the swift are those with the resources, the money, the lawyers, the power in the system?” Roberts enthusiastically agreed, adding that “the judicial oath talks about doing justice without regard to persons, to rich and to poor.”
Federal courts have sometimes embraced that view. For example, several federal trial courts have recently had to decide whether wealthy criminal defendants who are denied bail should have the option to construct and staff personal detention facilities in their homes, rather than staying in jail. Judges have rejected those proposals while citing their oaths. The poor and the rich don’t receive equal justice when only the latter avoid jail time. More broadly, courts throughout history have tried to account for the disadvantages of poverty, such as by appointing attorneys or generously reading uncounseled filings.
At other times, however, the oath has been viewed as a prohibition on accommodating the poor or disadvantaged. When then-Judge Sonia Sotomayor was nominated to the Supreme Court, for instance, there was debate about whether “empathy,” including for the poor, should inform judicial decisions. Jeff Sessions, then a Senator and now Attorney General, argued that, “whatever else empathy might be, it is not law.” Sessions further argued that “empathy as a standard” is “contrary to the judicial oath.” And, about thirty years ago, the Supreme Court itself cited the oath as a reason not to give special solicitude to civil rights claimants.
The “equal right” principle’s history leaves its meaning open to debate. For centuries, all federal judges and Justices have been required to swear or affirm, among other things, that they will do “equal right to the poor and to the rich.” When the First Congress originally enacted the federal judicial oath, the word “right” was commonly defined to encompass “justice.” And the oath also echoes grand biblical principles, such as Leviticus’s injunction that “thou shalt not respect the person of the poor, nor honour the person of the mighty.” But there has never been consensus on exactly what it means to do “equal right to the poor.”
That’s why Gorsuch’s confirmation hearings will be so important. In general, confirmation hearings offer a public forum where judicial nominees can specify the oath’s meaning by undertaking commitments not just to senators, but to the American people. In that spirit, here are three questions that the Senate might ask Judge Gorsuch:
- Can you tell us about a time when one of your judicial decisions was influenced by your oath to “do equal right to the poor and to the rich”?
- When federal judges have discretion to impose criminal fines, does the oath require consideration of whether the defendant is poor or rich?
- Do federal judges have an obligation to think about whether both the poor and the rich can access federal courts to obtain “equal right”?
These are not “gotcha” questions, and I doubt that Gorsuch would stumble in answering any of them. The point of asking these questions is instead to prompt public reflection on legal issues regarding economic equality. Greater attention to these issues would have implications not just for individual nominees, but also for the overall judicial selection process.
The Senate will likely ask many questions about cases, votes, and litmus tests during the upcoming confirmation process. But amid all the sound and fury is a simple statement that every federal judge must swear or affirm. That solemn promise focuses the mind—and, by discussing it, the Senate can help the public understand what Justice Gorsuch would mean when he promises “equal right to the poor.”
First posted on Prawfs.