Opinion: Confirm Gorsuch – by Yosef Stein

On January 31, President Trump made good on one of his most important campaign promises – to select a worthy, Constitutionalist successor to the late great Justice Antonin Scalia – by nominating Judge Neil Gorsuch of Colorado to the Supreme Court of the United States. Gorsuch, who holds degrees from Columbia, Oxford and Harvard Law School, served as a judicial clerk for two Supreme Court Justices – Byron White and Anthony Kennedy – in the early 90’s. His impressive resume also includes a decade of experience at a private law firm and a stint at the U.S. Department of Justice. In 2006, President Bush nominated Gorsuch to serve as a federal judge on the Tenth Circuit Court of Appeals. The Senate unanimously confirmed Gorsuch a short while later, elevating him to the position he still occupies today. Even as a federal judge, Gorsuch has found the time to teach a course at University of Colorado Law School, helping to educate the next generation of lawyers in ethics and antitrust laws.

Judge Gorsuch is a brilliant 49-year-old jurist with an aw-shucks demeanor and a self-deprecating sense of humor. Much like Justice Scalia before him, he is a legal treasure and a Constitutional originalist, which means that he believes that the Constitution is supposed to be interpreted according to its original intent. (This might seem obvious, but liberals tend to believe that the Constitution is supposed to change with the times. This makes no sense, as what is the point of founding principles if those principles can simply be changed or ignored based on the mood of any given generation? But I digress.) He is also a proponent of textualism, the belief that laws should be interpreted and applied literally, not based on what the judge wants the law to say. (This is another basic concept that many people – especially of the liberal persuasion – have difficulty grasping.) Gorsuch’s written legal opinions are known not only for their unflinching clarity and absence of ambiguity, but also for their exceptional wit and prose; Gorsuch is both a devout adherent of the law and a gifted writer. I am not being hyperbolic when I say that Trump could not have possibly made a better choice to fill Justice Scalia’s shoes.

Predictably, Democrats are up in arms over Neil Gorsuch’s nomination for the Supreme Court. However, they have struggled to execute a coherent line of attack against a judge who is so obviously qualified for the job, and their aggressive attempts to malign his record have been confusing at best and outright dishonest at worst. In spite of the borderline-incomprehensible nature of these attacks, I believe that I have managed to identify the three main arguments that Democrats have made against confirming Gorsuch.

The first complaint Democrats have against Gorsuch is that he is not Merrick Garland. Garland, you may recall, is the judge whom President Obama appointed to fill Justice Scalia’s seat following the late judge’s passing last year. At the time, Senate Majority Leader Mitch McConnell (R-Ky.) denied Garland a committee hearing or a vote. He posited that the American people should have a say in the Supreme Court vacancy, opting to wait for the next president – whether Hillary Clinton or Donald Trump – to fill the seat. McConnell’s gambit paid off bigly (as President Trump might say), as Trump has chosen a nominee far more in line with Constitutional conservative values. As such, a common refrain among Senate Democrats has been that the vacant spot on the court is a “stolen seat” and that they will not vote to confirm anyone other than Garland.

Now, it is important to note that Garland was also eminently qualified to serve on the Supreme Court. While I disagree with his judicial philosophy, there is no question that he has the resume and intelligence to be a Supreme Court Justice. So why did Republicans block him? Partisan politics. With Scalia’s seat hanging in the balance, the Supreme Court was divided 4-4 between Republican and Democratic appointees. Republicans did not want liberals to take over the court, so they blocked Garland and refused to confirm him.

This may sound like a shady partisan ploy. However, Democrats would have done the exact same thing if the roles were reversed. How do I know this? Because Democrats are the ones who created the precedent for the idea that the Senate should not confirm Supreme Court nominees during election years. The “Biden Rule,” so named for former Democratic Senator and Vice President Joe Biden, was first invented in 1992, when Biden took to the Senate floor to make the following statement: “It would be our pragmatic conclusion that once the political season is underway, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over.” Senator Biden assumed this position because President George Bush, a Republican, was in office at the time. So why shouldn’t the same made-up rule apply when a Democrat is in office? In blocking Garland from being confirmed, McConnell gave Democrats a taste of their own medicine, and they didn’t like it one bit.

Additionally, Democrats are being disingenuous in their insistence that this Supreme Court seat belongs to Merrick Garland. Throughout the presidential campaign, Hillary Clinton refused to commit to sticking with Garland if elected. If she had won, she likely would have replaced him with someone younger and more progressive – to the delight of the very liberals who are presently claiming that Scalia’s seat belongs to Garland and demanding that the Senate not consider anyone other than him. Liberals couldn’t care less about Garland – they just want a liberal nominee.

The second argument Democrats have made against Gorsuch is that he typically sides with corporations over individuals when they clash in the courtroom. During Gorsuch’s confirmation hearings, Democratic senators repeatedly raised the case of a trucker whose brakes froze up in subzero weather. Feeling that his life was in danger, the trucker unhitched the trailer from the cab of his truck, left it on the side of the road, and drove to a nearby gas station to warm up. The trucker was subsequently fired, and he sued the company for wrongful termination. His case came in front of Judge Gorsuch, who ruled (in a minority opinion) that the trucker was not protected under a law that bars the firing of employees who refuse to operate their vehicles in such circumstances, for the simple reason that he had not refused to operate his vehicle – rather, he had chosen to operate it in the way he thought best.

While Democrats tried to attack Gorsuch over this during the hearings, attempting to paint him as cruel and heartless, the attacks fell flat in the face of Gorsuch’s calm and clear explanations of the fact that as a judge, it is not his job to decide what the law should say. His job is to read the law and interpret it based on what it actually says, not based on what he wants it to say. This basic concept is foreign to many liberals, as evidenced by the difficulty that Democratic Senators Dick Durbin and Al Franken had grasping the idea. The truth is that there is no evidence for the baseless assertions that Gorsuch sides with businesses over individuals; he simply applies the law and the Constitution as well as he can in every given situation.

While the Democrats would rather talk about Garland and the “little guy” to justify their opposition to Gorsuch, the main reason for their resistance is that they don’t like his brand of Constitutional originalism – coupled with the fact that he’s Donald Trump’s nominee, and the Democrats are determined to obstruct everything that Trump does at all costs, regardless of the implications for everyday Americans (hence the term with which they have branded themselves: “The Resistance”).

While liberals have every right to take issue with Judge Gorsuch’s originalist and textualist beliefs, judicial philosophy has not traditionally been a reason to vote down a Supreme Court nominee – let alone filibuster to block a vote from occurring in the first place. Justice Scalia, a proponent of the same judicial philosophy as Gorsuch, received 98 votes in the Senate. Justice Ruth Bader Ginsburg, of the opposite end of the judicial spectrum, received 96. Even truly controversial nominations, like those of Clarence Thomas and Robert Bork, have not been filibustered. So while liberals are busily attempting to paint Neil Gorsuch as out-of-the-mainstream (which he most certainly is not), they are ignoring the fact that far more contentious – and less qualified – nominees have received far better treatment at the hands of the Senate.

So ultimately, what’s going to happen? Senate Democrats are trying to round up the votes to wage a filibuster to block a vote on Gorsuch’s confirmation, which would constitute an unprecedented obstruction of the Supreme Court confirmation process. While Democrats tried to filibuster Samuel Alito’s 2005 nomination, that effort – the first attempt to filibuster a Supreme Court nominee – fell short. This time, however, Democrats believe they have the 41 votes necessary to block an up-or-down confirmation vote from occurring on the Senate floor.

Fortunately, Democratic obstruction does not mean that Gorsuch’s nomination is in any serious jeopardy. If Democrats filibuster Gorsuch’s nomination, Mitch McConnell and his caucus will simply change the Senate rules and abolish the Supreme Court filibuster via the so-called “nuclear option.”

Democrats will predictably cry foul when Republicans take this step, but their arguments will not hold any water – for two reasons. First of all, Democrats set the precedent for nuking the filibuster in 2013, when then-Majority Leader Harry Reid did away with the filibuster for all presidential nominations other than Supreme Court picks. The Democrats went 99% of the way towards eliminating the filibuster for presidential picks; the GOP has every right to go the rest of the way, as the Democrats would undoubtedly have done in the same situation. (Senator and 2016 Democratic Vice Presidential Nominee Tim Kaine admitted as much last year.) Secondly, Gorsuch is as qualified to serve on the court as anyone. If the Democrats refuse to confirm him, which Trump nominee would they confirm? Nobody. Which is why if Republicans are forced to exercise the nuclear option, they won’t lose any sleep over it. The ball is in the Democrats’ court; let’s see how they choose to play. Either way, this is one fight they are going to lose.

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8 COMMENTS

  1. As always your articles are a pleasure to read. You articulate your points extremely well and you are always right on the money. Thank you!

  2. you should mention that the so-called Biden rule never got acted upon by the democrats. But it did by the republicans with Garland….

    we need the judges to protect the ‘little guy’ when the little guy is in the right because the big and important trample on the little guy all the time….

    • Leon,
      That would go against whole idea of checks and balances.
      The Senate and Congress have the job to write the law. So if you feel that laws do not protect the little guy, then the people to complain to are your senators and congressmen. The Judiciary branch / courts have the job to interpret the law. They cannot make the law favor the little guy if it doesn’t. That in fact would go against the constitution

  3. Wow- he accomplished a lot in 49 years. It’s interesting to think that he could sit on the same bench for the next 49 or so…I know it’s the “pinnacle” but he seems too dynamic to be settling in to Washington DC at this age.

    • Mr. Jones,
      This is a pretty typical age. Clarence Thomas was 43, Scalia was 50, John Roberts was 50, Elana Kagan was 50, Anthony Kennedy 51, etc.
      Seems to be just the right amount of time to have sufficient experience while still allowing for a long time to serve.

  4. To Leon
    Sorry you are wrong judge job is to say what the law is, period. He’s not supposed to favor anyone.
    That’s another liberal misguided thing to help the so called little guy.
    Little guys can get help by charity, or by organization, but judge absolutely not favor anyone.
    That’s why liberal call it social justice, which is so wrong. Social justices is not justice!

  5. i never meant that the judge should favor the little guy just because he is little… but the judge has to take into account the circumstances surrounding the case…

    for example, the insurance companies often underpay legitimate claims because they know that you as a little guy cannot afford 5-10K retainer to litigate the claim to get full value….

    Yossi, fyi, Senate is one of 2 chambers of Congress, the other one is the House of Representatives

Comments are closed.