David Savage March 24, 2017

David G. Savage has covered the Supreme Court and legal issues for the Los Angeles Times in the Washington bureau since 1986. He has covered the Senate confirmation hearings for all of the current justices. In addition to writing about the court’s work, he has written on the legal battles that have raged in Washington, from the Clinton impeachment in the 1990s to the Florida recount after 2000 presidential election, the “war on terrorism” in the years after the 9/11 attacks, and more recently, on voting rights and gay marriage. He joined The Times in 1981 and was an education writer on the Metro staff for five years.

Savage spoke with SCOTUSDaily about this week’s confirmation hearing regarding the nomination of Judge Neil Gorsuch, and he also shared with us some of his hopes and dreams for how the Supreme Court might change in the future. 

How did you get your start covering the Supreme Court?
When I got out of college, I lived here in Washington and was an education writer. I moved out to L.A. in the 1980s. I was an education writer there and covered the public school system, and at some point I expressed some interest in moving back to Washington. It just so happened our Supreme Court reporter wanted to leave the job here and come back to California and one of the editors thought I would be good at covering the Court. I started in 1986, the summer Rehnquist became the chief justice and Scalia joined the court. It was a very interesting time.

I came in knowing about as little as you can know about the Supreme Court, and it took me three or four years to be comfortable doing the job. There’s a whole lot of jobs in journalism where people do the job for two or three or four years then switch. But with the Supreme Court, there’s a vast array of areas of law that come up in cases, covering all kinds of subjects. I remember when I first started, there was a case on telephone rate regulation, and I thought, I don’t know a damn thing about that! But Washington being Washington, I could find three or four lawyers that had spent years litigating in that area and knew all about it. Then the next day you might have a water case from the West, then an anti-trust case, then a class-action suit about workers’ rights, then a free speech dispute, or a religion case. I just found it to be a really interesting way to learn about a lot of different subjects.

In the time that you’ve been covering the Court, what would you say has been the most surprising thing you’ve learned about the Supreme Court?
I am a little surprised, and a little bit dismayed, that the Court seems to be going the way of the country in the sense that it is more divided along ideological lines than it was when I started. If you go back to the seventies and early eighties, there were a number of justices who were not easily categorized as conservative or liberal.

These days, I think it’s easy to tick off six, eight, ten issues — abortion, affirmative action, campaign funding, environmental protections, gay rights, gun rights, religion — and on each one of them, I could tell you, and you could tell me, who holds the conservative view on the subject and who holds the liberal view on the subject. Since about 1990, the two parties are much more ideologically divided and presidents are more serious about choosing justices that reflect the views of the mainstream thinking of the Republican Party or the Democratic Party. I don’t think any of them are extremists; they just represent the views of the party that nominates them.

I don’t know whether I’m surprised about that, but it’s one of the things that has changed over the years. They’re getting pretty predictable, and I sort of regret it. I think it would be a wonderful surprise if, take Judge Gorsuch, if he were not always on the conservative side of a lot of the big cases.

People are always considering different ways to reform the Court. If there was anything you could change about SCOTUS what would that be?
I don’t have a clear, strong view on cameras in the Court, and the justices seem to think the cameras would change the way things are argued. But the way things are going, the justices may be the last nine people in the country who share that view.

Well it’s only eight right now, so the number is dwindling.
I’m confident if Gorsuch gets there, it’s going to be nine. They all seem to think that cameras would make things worse rather than better. And everyone on the outside thinks it would be wonderfully educational.

I don’t really have a procedural suggestion for how to change the Court, but I sort of wish the Court would surprise us a little more than they do. If I had to wish for something, it would be that we would have a few more Byron Whites or Sandra Day O’Connors — justices that reflected a middle view of the country and were not predictably on the liberal or conservative side on all the big issues.

Is it possible that the reason we don’t get that middle view of the country on the Court is because it doesn’t exist anymore?
Yes. And the political parties have learned how important the Supreme Court is from the sixties on. It was Justice Scalia who said that if the Supreme Court is going to decide some of the biggest social and cultural issues of the day, and decide them in way that can’t be changed by politics, then both sides are going to put a lot of stock in getting somebody who really agrees with them because it’s a lifetime job. Donald Trump said this a lot on the campaign trail — “Hey, no matter what you think of me, you need to vote for me because of the Supreme Court.” And that was a very appealing line.

What do you think were some of the highlights of Judge Gorsuch’s hearings this week?
All the Supreme Court confirmation hearings are sort of similar in that all the senators get together — inquisitive, anxious — and they sit there as the nominee says, “Sorry, I’m not going to answer any of your questions.” They all say, “I can’t tell you anything about what I really think because it could tip my hand for future cases, and therefore I’m going to talk around the subject.”

With that said, I thought that Gorsuch was a very effective witness for himself. He’s a thoughtful, considerate guy. He smiled, and he’s very earnest and idealistic. He knows the law. He’s certainly got a lot of admirers and supporters. But I didn’t think he revealed much of anything that you wouldn’t have known going in. My impression is he’s really quite a conservative judge and will be a conservative justice, I think. But it was hard to tell from the hearings.

Beforehand, I wrote about originalism because Gorsuch gave a speech last year after Justice Scalia died, talking about following the original meaning of the Constitution. I wondered if Gorsuch really believed in that, because you know it’s a thing people say but it’s a different thing to believe it. During the hearing, every time Gorsuch was asked about originalism, he walked away from it. When Dianne Feinstein asked him about originalism, Gorsuch said, “We won’t return to the days of the horse and buggy, and we don’t want to look backwards… we take those principles of equal protection and apply them to today.” And I thought, my goodness, that’s not Scalia’s view. That seems very much like what a liberal law professor might say about interpreting the Constitution.

How much of what Gorsuch presented during the hearing was performance, do you think?
During the exchange between Judge Gorsuch and Senator Feinstein about assisted suicide, I thought he was showing a lot of emotion and personal empathy to avoid answering the question. She wanted to know about the California physician-assisted suicide law that allows a doctor to prescribe a lethal medication. Feinstein was asking about that and he kept saying, “Well, you know I’ve been there… I know what that’s like… I agree patients have a right to withdraw treatment and go home to die.” But that’s been accepted for twenty years! He did not answer the question she asked. I don’t know how planned it was, but it seemed as though his emotional response was responding to the problem but not actually answering what was asked.

What is the political reality for Democrats, as Senator Chuck Schumer has suggested, to be successful in opposing Judge Gorsuch’s nomination?
Well, the Democrats are in bad shape. I’m no expert on politics or the Senate, but my sense is the Democrats are very angry about what happened to Merrick Garland and they are determined to fight. The one thing they can do is insist on 60 votes, but it requires all the Democrats to join in and hold the line. And I sort of question whether they would want to go that route. Mitch McConnell has already said that if they do that, then the majority is going to change the Senate rules and abolish the filibuster for Supreme Court nominees.

I’m glad I don’t cover the House and Senate, truly. The Supreme Court has enough complication.