Democrats' Assault On Judge Gorsuch Is A Bust

How far on a limb will they go to block confirmation?

Democrats are flailing around in a desperate effort to block Judge Neil Gorsuch’s appointment to the U.S. Supreme Court. They are still sore over what the New York Times editorial board claimed was the “Senate Republicans’ outrageous and unprecedented blockade of Merrick Garland” last year. Vengefully seeking to delegitimize Judge Gorsuch’s nomination, the Senate Democrats on the Senate Judiciary Committee are using much of their time trying to trip up Judge Gorsuch with “gotchas,” as well as caricaturing the man and his record. In the process, the Democrats appear petty and partisan, while Judge Gorsuch is acquitting himself with eloquence, dignity and wit. Over and over again, Judge Gorsuch stressed his fealty to the law, including to the Constitution. 

“A judge is there to make sure that every person, poor or rich, mighty or meek, gets equal protection of the law,” Judge Gorsuch said. “I have one client,” he added. “It’s the law.”

Democrats evidently do not see Judge Gorsuch’s judicial temperament as a virtue. They do not like the outcomes of some of the decisions he was involved with as a federal appellate court judge, because they do not fit the progressives’ social justice political agenda.  Thus, they seek to characterize his views on major issues as way out of the so-called “mainstream” and against the “little guy.” They also question Judge Gorsuch’s independence from the president who nominated him.

One theme the Democrats have been hammering away at for some time is to question what Judge Gorsuch would do when “called upon to stand up to this president,” as Senator Richard J. Durbin, Democrat from Illinois, put it in his opening remarks at the confirmation hearing. Anticipating this line of questioning and seeking to defuse the issue, committee chairman Senator Chuck Grassley, Republican from Iowa, asked Judge Gorsuch directly whether he would have any problem ruling against President Trump. “That’s a softball, Mr. Chairman,” Judge Gorsuch responded. “I have no problem ruling against a person or any party. There’s no such thing as a Republican judge or a Democratic judge. We just have judges.“   

Aside from Judge Gorsuch’s own assurances that he would follow the law wherever it took him, regardless of politics or policy preferences, Judge Gorsuch received praise on the opening day of the confirmation hearing from a man who himself has taken on President Trump in court.  Neal K. Katyal, who served as acting solicitor general in the Obama administration and is representing Hawaii in its challenge to President Trump’s travel suspension, said about Judge Gorsuch, “This is a first-rate intellect and a fair and decent man.”

When Senator Patrick Leahy, Democrat from Vermont, asked Judge Gorsuch whether he believed that President Trump’s national security directives were subject to judicial review, Judge Gorsuch responded: “No man is above the law.“ 

However, the judge appropriately declined to indicate his thoughts on how he might apply the First Amendment’s clauses pertaining to religious freedom to the specific challenges brought against President Trump’s travel suspension executive orders. “We have a free exercise clause, which protects the free exercise of religious liberties by all persons in this country,” Judge Gorsuch said. “If you’re asking how I would apply it to a specific case, I can’t talk about that for obvious reasons.“  

Democrats are also seeking to paint Judge Gorsuch as an extremist whose views are way out of the so-called “mainstream.” They are trying to pin him down on his views of Roe v. Wade to prove their point. While Judge Gorsuch did not embrace the term “super-precedent” that Senator Dianne Feinstein coined, he said: “I would tell you that Roe vs. Wade, decided in 1973, is the precedent of the United States Supreme Court. It has been reaffirmed many times.” Indicating that he had not made any prior commitments on how he would rule on specific cases during the course of the nomination process, he added, “I don’t believe in litmus tests for judges.”

Senator Feinstein also went after Judge Gorsuch on what he had purportedly stated in certain documents while serving in the Bush administration about the use of waterboarding and other interrogation techniques considered to be torture. Judge Gorsuch responded that he would have to look at the specific documents Senator Feinstein was referring to, but said more generally that he did not mean to advocate or defend the use of torture as Senator Feinstein intimidated he may have done. 

Judge Gorsuch was asked about opinions he wrote or participated in that upheld religious-based challenges to the Obamacare contraceptive coverage mandate for employer-provided health insurance policies. He replied that he was simply applying the requirements of the Religious Freedom Restoration Act in protecting religious liberties, as he had done in other cases involving Muslim-Americans and Native Americans.  

Another line of attack the Democrats are launching is to characterize Judge Gorsuch as a tool of the special interests, who regularly rules for the big corporations against the little guy. 

“How do we have confidence in you that you won’t just be for the big corporations?” Senator Feinstein asked Judge Gorsuch. “Those of us, I think on both sides, care very much about workers’ rights. But the record is such that one questions whether the court is capable in its current composition to give a worker a fair shot.”

Judge Gorsuch was well prepared for this question. He cited specific past cases in which he said he decided in favor of consumers and other individuals whom he described as “the least among us” against “the big guy.” He added, “I have participated in 2,700 opinions over 10 and a half years. And, if you want cases where I’ve ruled for the little guy as well as the big guy, there are plenty of them.”

Senator Sheldon Whitehouse, a Rhode Island Democrat, tried another tack. He questioned Judge Gorsuch about the outside money being spent to promote his nomination, implying that Judge Gorsuch was benefiting from wealthy special interests. The senator wanted to know whether the Senate deserved to find out who was funding the promotion campaign. Judge Gorsuch acknowledged that “there is a lot of money being spent on this,” but said to Senator Whitehouse, “The ball’s in your court” to investigate. When Senator Whitehouse asked the judge whether he regretted the millions of dollars being spent on his behalf by unknown benefactors, the judge replied that “there’s a lot about the confirmation process today that I regret,” including the impact on his family. But he also reminded the senator that it was Congress’s responsibility to “pass a law” if he wanted more disclosure.

Senator Al Franken, a Minnesota Democrat and former comedian on Saturday Night Live, was downright rude. He hectored Judge Gorsuch about the judge’s position in a case involving an employee who was fired for leaving a trailer he had operated in freezing temperatures. Reacting to Judge Gorsuch’s expression of empathy for the employee he had sided against in a dissenting opinion, based on his reading of the applicable law, Franken said “I had a career in identifying absurdity and I know it when I see it. It makes me question your judgment.” For the sake of the country, Franken should return to Saturday Night Live, if they would take him back.

In short, the Democrats have thrown everything but the kitchen sink at Judge Gorsuch, but have come up empty-handed so far in their attempts to discredit him. What they are left with is the charge that Judge Gorsuch has not been sufficiently forthcoming in his answers. They want him to reveal his thinking on current issues that are likely to make their way to the Supreme Court. They seem to have forgotten the “Ginsburg Rule,” set by then Senator Joe Biden, which stipulated during the Supreme Court confirmation hearings for Ruth Ginsburg that she did not have to answer questions about her personal views or on issues that could come before the Supreme Court. Over and over again, Ruth Ginsburg refused to answer any such questions. 

Judge Gorsuch has tried to take the same approach during his confirmation hearing that a Democratic senator had originally invoked for Justice Ginsburg. Yet Senate Minority Leader Chuck Schumer of New York hypocritically accused Judge Gorsuch of “playing dodge ball with the Senate Judiciary committee. He has bent over backwards to avoid revealing anything, anything at all, about his judicial philosophy or the legal issues that concern the American people.”

Some Democrats have already indicated their consideration of a filibuster when it comes time to bring Judge Gorsuch’s nomination to the Senate floor. Will there be 8 Democrats willing to defy their caucus and vote to close down such an obstructionist filibuster, allowing an up-or-down vote on the merits? Will the Democrats decide in the end to let Judge Gorsuch through and wait for the next nomination to fight all the way with a filibuster? If not, Majority Leader Senator Mitch McConnell will have no choice but to invoke the “nuclear” option and have Judge Gorsuch’s nomination for the Supreme Court proceed with a majority vote.