Neil Gorsuch is Donald Trump’s nominee to replace late constitutionalist conservative Antonin Scalia on the Supreme Court. David Foster Wallace is a late postmodern novelist and essayist who committed suicide in 2008 after completing one notoriously complex and difficult novel, Infinite Jest, and dozens of essays, articles, speeches, and short stories. One might not immediately put these two names together but during his Supreme Court nomination hearings before Congress on Tuesday, Gorsuch referenced an anecdote about some fish that David Foster Wallace told during a commencement speech at Kenyon College in 2005, and it’s getting some attention.
Before the graduating class of Kenyon College in 2005, David Foster Wallace began his speech by telling an anecdote about some fish. It almost resembles a fable in the way it uses anthropomorphization of animals to teach a bit of a lesson about life. Purdue University has a transcription of Foster Wallace’s speech.
“There are these two young fish swimming along and they happen to meet an older fish swimming the other way, who nods at them and says ‘Morning, boys. How’s the water?’ And the two young fish swim on for a bit, and then eventually one of them looks over at the other and goes ‘what the hell is water?”
According to NPR News, Neil Gorsuch alluded to the fish anecdote to make a point about what it’s like to live in a society in which we are completely immersed in the rule of law.
“I think sometimes really in this country, we’re kind of like David Foster Wallace’s fish,” Gorsuch said.
“He wrote about a fish swimming in an aquarium. And it spends so much time in water and it’s surrounded by it, the fish doesn’t even realize it’s in water. … The rule of law in this country is so profoundly good compared to anywhere else in the world that we can complain and know that we’re protected because of the rule of law, I think we’re a little bit like David Foster Wallace’s fish. We’re surrounded by the rule of law. It’s in the fabric of our lives — so much so we kind of take it for granted.”
This is not the first time that Gorsuch has used David Foster Wallace’s fish anecdote to make a similar point. In an essay written for the Harvard Journal of Law & Public Policy titled “Law’s Irony” Gorsuch went into detail explaining exactly what he means.
“Here, then, is the irony I’d like to leave you with,” Gorsuch writes.
“If sometimes the cynic in all of us fails to see our Nation’s successes when it comes to the rule of law maybe it’s because we are like David Foster Wallace’s fish that’s oblivious to the life-giving water in which it swims. Maybe we overlook our Nation’s success in living under the rule of law only because, for all our faults, that success is so obvious it’s sometimes hard to see.”
Neil Gorsuch was not the only person to use literary references in Tuesday’s hearing. Senator Ted Cruz referenced The Hitchhiker’s Guide To The Galaxy, according to Slate.
It’s also possible that Neil Gorsuch’s reference to David Foster Wallace is a knowing wink and a nod to the man whose role on the Court he has been chosen by Donald Trump to fill. According to Business Insider, Antonin Scalia was a fan of David Foster Wallace, even once arranging to have lunch with the author.
Whether referencing David Foster Wallace will win any points with liberals and progressives who count themselves fans of David Foster Wallace but opposed to Gorsuch or really anything having to do with Donald Trump is doubtful. But, at the very least, it’s a rather interesting choice of words that suggests perhaps Neil Gorsuch’s reading list is not limited to works of pure legal scholarship.
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