Lawyers have to move on from witnesses who won't budge

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Neil Gorsuch talking

During his confirmation hearings in March, Neil M. Gorsuch refused to answer Blumenthal’s questioning of whether he agreed with the decision in Brown v. Board of Education. Photo by Olivier Douliery/ABACA (SIPA USA via AP Images).


Here’s another possibility: Blumenthal knew exactly what he was doing. He wanted to turn as many of the Democratic senators as possible into committed opponents to Gorsuch’s confirmation. What better way than to demonstrate the judge’s refusal to commit himself to agree or not with any established precedent? And perhaps in respect to Brown v. Board of Education, the senator wished to extract a commitment that the case was and would remain good law, nay that it was sacrosanct precedent and would remain without threat of repeal, at least with his vote used to assist any backpedaling or reversal.

If those were indeed Blumenthal’s goals, his method was brilliant, although he seemed pigheadedly obtuse. Let’s assume the senator had thoroughly sussed out Gorsuch’s personality and style. Let’s further assume that the senator knew the fish he was trying to land would never bite.

The judge was too determined to show that he was independent to agree with virtually anything in the form he was asked. Instead, he showed his rectitude by refusing to say whether he agreed with the holding of Brown, nonetheless throwing himself into the net the senator was holding to catch him. Gorsuch is now committed until his dying day that Brown is a proper reading of the 14th Amendment and will be preserved in whatever permutation it may raise its head. The ultimate moral of this story is that everything is a learning experience for the wide-awake lawyer.

Don’t just passively listen to what you see and hear. Reflect on it. Ask yourself: What does this have to teach me? Then take the ride in that mental car, not necessarily knowing where the particular road you are on will wind up. Reflect on and analyze the amazing turns in the road, and use them as an opportunity to improve your craft. In doing so, take care not to beat any dead horses.

This article appeared in the September 2017 issue of the ABA Journal with the headline “Beating a Dead Horse: Lawyers have to move on from witnesses who won’t budge.”


Edna Selan Epstein is retired from the active daily practice of law. She established her own firm in 1989 and handled a variety of litigated matters. She has served on the book publishing board of the ABA Section of Litigation and on the editorial board of the section’s journal, Litigation.

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