On the surface, they could hardly be more different. Neil Gorsuch is known for his intellectual firepower; Donald Trump speaks at the level of a 10-year-old. Gorsuch has literary panache; Trump once referred to the size of his genitalia on a presidential debate stage. Gorsuch is a textualist; Trump makes up his own facts. And at first, it seemed confirmation hearings for Gorsuch’s nomination to be the next justice on the supreme court this week would only serve to heighten these contrasts.
As Trump tweeted angry disinformation in response to the revelation of an FBI investigation into his administration, Gorsuch sat coolly before members of the Senate judiciary committee. He quoted Socrates and reminisced with Ted Cruz about playing ball on the supreme court’s basketball court as young clerks.
Mainly, though, he successfully dodged senators’ questions aimed at, as one put it, determining “who you really are”. He was one of the most evasive nominees in recent memory, but what he did finally reveal had nothing to do with his patently conservative ideology – one thought to be even more staunchly conservative than that of the man he would replace, the late Antonin Scalia. Instead, on display were a set of unmistakably Trumpian attributes that should sound familiar to any close observer of the 2016 presidential election: a cold cognitive empathy coupled with a dearth of compassion.
One of the most revealing moments came on Tuesday as Gorsuch sought to explain his dissent in TransAm Trucking v Administrative Review Board. A focus of Democratic questioning much of the week, it has come to be known as the “frozen trucker” case. In it, Gorsuch sided with TransAm’s decision to fire its employee Alphonse Maddin for disobeying company orders after his truck broke down in subzero temperatures and he began to fear he would freeze to death. After notifying his employer and waiting hours, Maddin unhitched and temporarily abandoned his trailer to seek shelter. The dissenting opinion filed by Gorsuch in effect presented him with what sounds like an inhumane option: leave and be fired or stay and risk freezing.
Senator Al Franken asked Gorsuch what he would have done in those circumstances. “I don’t know what I would have done if I were in his shoes,” Gorsuch replied. “And I don’t blame him at all for a moment for doing what he did do. I empathize with him entirely.”
Empathy is often conflated with sympathy or compassion, but there’s a crucial difference. The latter connote feeling; the first does not. Having empathy, as Gorsuch said he had for Maddin, is morally neutral; it does not mean someone will necessarily help a person in need, only that they understand their situation.
By Maddin’s own account, three hours into waiting for help to arrive, his torso went numb. He couldn’t feel his feet and felt himself “fading”. Gorsuch understood that cognitively. Yet when presented with credible and abundant evidence of the grave risks faced by Maddin, Gorsuch deemed them irrelevant.
He may have empathized with Maddin but that did not lead him to change his legal opinion. What’s unusual here is not Gorsuch’s conservative philosophy or textualist tendencies. It’s not even that he sided with a company over the “little guy”, as Democrats repeatedly said.
It’s that the fact that Maddin might have died sitting there waiting for help at 14-below, if he’d been unwise enough to follow the only option made available by Gorsuch, did not appear to enter into his calculus. He did not seem to care.
“A good judge doesn’t give a whit about politics,” Gorsuch said at one point, a line whose variations would become a mantra of his throughout the week. But Gorsuch’s record and comments suggest he may also believe a good judge does not give a whit about people.
Researchers distinguish between two types of empathy: that of thought, and that of feeling and emotion. In Trump, the split appears remarkably pronounced, playing into an identity biographers point to as the salient feature of his personality. “Trump is a former schoolyard bully who was sent away to military school to learn proper behavior. That schooling obviously failed,” the Trump biographer Harry Hurt III told the Guardian. “Trump has matured, if one can use that term, into a courthouse bully.”
Common sense might seem to suggest bullies have low levels of empathy, but that may not get it quite right. A 2010 study published in Educational Psychology found bullies lack “affective empathy” but not “cognitive empathy”. The finding suggests children had insight into their victims’ psyches but lacked the type of empathy – feeling-based empathy, or compassion – that might have deterred them from hurting others.
Trump’s greatest gift appears to be in this latter realm – the ability to see into the thoughts and concerns of others enabled him to forge a connection with voters no other candidates conjure.
Such a lens could help explain Trump’s ability to win over poor rural white people on the one hand, and willingness to get right to work crafting healthcare legislation that would hurt the very voters who gave him his mandate on the other.
In Gorsuch’s case, his charming political polish, enabled by his self-proclaimed empathy, allows him to respond in kind to emotional lines of questioning.
When Dianne Feinstein questioned him about his views on the right to die – he has opposed assisted suicide and euthanasia – she invoked painful memories of her ailing father imploring her: “Stop this, Dianne, I’m dying,” and close friends pushed to endure when “there was no hope”. Gorsuch responded accordingly.
“We’ve all been through it with family. My heart goes out to you, it does, and I’ve been there with my dad, OK? And others,” he said. “And at some point you want to be left alone. Enough with the poking and the prodding. I want to go home and die in my own bed in the arms of my family,” he went on.
And yet he failed to explain why none of this made a dent in his thinking. (And having written an entire book on the matter, he has clearly thought about it a lot.) In his book, he wrote: “All human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong.” Pressed further on questions of extreme pain at the end of life for the terminally ill, Gorsuch tried to draw a line between knowing and intention. “The position I took in the book on that was anything necessary to alleviate pain would be appropriate and acceptable, even if it caused death, not intentionally, but knowingly,” he said. “I drew a line between intent and knowingly.”
What exactly his intent was in making that distinction is hard to know. Especially because a moment later, Gorsuch was back to cognitive empathy. “I have been there. I have been there,” he said. Headlines would suggest it was he, not Feinstein (the person detailing her father’s death and its effect on her) who got emotional. Whether he did or not, his legal position did not change.
Throughout the week, Gorsuch dodged nearly every substantive question by saying he would defer to precedent. But in TransAm Trucking v Administrative Review Board we saw him fight precedent – in this particular case, a legal statute known as Chevron deference – for what appear to be the pettiest of possible reasons. In his remarkably flippant opinion, Gorsuch narrows legal definitions to make them more restrictive, and even at one point compares Maddin’s decision to unhitch his broken trailer from the truck and seek shelter to an employee “using an office computer not for work but to compose the great American novel”.
He goes on to speak dismissively about his colleagues prioritizing what he refers to as “ends as ephemeral and generic as ‘health and safety’.” He adding: “After all, what under the sun, at least at some level of generality, doesn’t relate to ‘health and safety?’”
The language of the decision is in jarring contrast to the tone he adopted throughout the confirmation hearing process: affable, inoffensive, and almost entirely devoid of content. Here, too, Gorsuch is breaking with precedent, according to Justin Wedeking, a political science professor at the University of Kentucky, who has analyzed these hearings as far back as 1955.
“We have not crunched any numbers yet,” Wedeking said, “but it appears Gorsuch has been more hesitant than recent nominees to answer questions in a forthcoming manner, in some cases even refusing to offer a partially qualified answer.” His previous analysis, in a 2010 report co-authored by Dion Farganis, found supreme court picks have become more evasive over time and questions from senators have become more aggressive.
But the trouble with Gorsuch, we learned this week, is not ideology but humanity.
That’s something Maddin, tellingly, has noticed too. “It seemed like an attempt to avoid the human element,” he told the Associated Press of Gorsuch’s dissent in his case. “When you think something that’s a legal matter, that nature and magnitude, I would think that he would have referred to me ... by name. He refers to me simply as a trucker.”
If Democrats choose to filibuster, fight and delay Gorsuch for as long as they can, their biggest justification may not be that his seat was stolen and the moment calls for a moderate, nor because he offered next to no substantive answers this week – it may be because, faced with the very real specter of a compromised president intent on overreaching his powers, he offers worse than no check. In unguarded moments, he offers more of the same.
“I’m not an algorithm,” he said in one such moment, “but I try really hard, and it’s almost like an athlete. It’s something judges practice and hopefully we get better at it with time.”
Judging from his testimony and his record, he needn’t try so hard. Such detachment seems to come naturally.