Democratic Hysteria Over Gorsuch Is Predictable Posturing


by Carrie Severino | February 6th, 2017

This is really getting old. I refer, of course, to the left’s now ritualized hysteria over Republican Supreme Court nominees.

The hysterical opposition has almost nothing to do with the particular nominee a Republican president names. After all, left-wing groups once attacked David Souter and Anthony Kennedy with the same fervor they are now employing against Judge Neil Gorsuch. And Democratic senators were promising to filibuster even before they knew who the nominee would be.

The “radical” Gorsuch, don’t you know, is a threat to safe water, food, drugs, consumers, investors and workers, an “affront to all who care about women’s health and rights and about stopping discrimination.” The Tenth Circuit U.S. Court of Appeals judge will also roll back “protections for women’s access to health services” and has shown “a disturbing attitude toward police brutality and workplace anti-discrimination laws.”

The left’s response to a nominee of Gorsuch’s caliber makes plain that the issue in their confirmation battles is not the judge. How could it be? The Senate unanimously confirmed this graduate of Columbia, Harvard Law and Oxford University to the appellate court just ten years ago. His opinions there have been models of precision and erudition, principle and collegiality. Small wonder that liberals who know him, like Neal K. Katyal, President Obama’s former acting solicitor general, are making the case for Gorsuch’s confirmation.

No, all the hysteria is about the proper role of judges – and how judges should judge – in our system of government.

The left wants judges who act like legislators or delegates to a perpetual constitutional convention, minting new rights and powers that reflect their personal feelings and policy choices. It also wants judges who give the Executive Branch “experts” in today’s vast, over-regulating administrative state the power to make law.

Much like the man he would replace on the court, Gorsuch will have none of this. And much like Antonin Scalia, he makes his originalist, textual views clear in a manner that instructs when it does not entertain. Consider his words at a memorial for Scalia:

“[T]he great project of Justice Scalia’s career was to remind us of the differences between judges and legislators. To remind us that legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But … judges should instead strive (if humanly and so imperfectly) to apply the law as it is … to decide what a reasonable reader at the time of the events in question would have understood the law to be—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.”

These were not simply words at great man’s passing. They reflect the jurisprudence – the views on judges and judging – etched deeply in Gorsuch’s work on the Denver-based appellate court.

You see this in his dissent in A.M. v. Holmes, but you also see more: literary flair and concern for collegiality. It’s worthy of extended quotation, because, in both substance and tone, it stands in marked contrast to the left’s reaction to Gorsuch’s nomination:

“Often enough the law can be ‘a ass—a idiot,’ Charles Dickens, Oliver Twist … —and there is little we judges can do about it, for it is (or should be) emphatically our job to apply, not rewrite, the law enacted by the people’s representatives. Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels. So it is I admire my colleagues today, for no doubt they reach a result they dislike but believe the law demands—and in that I see the best of our profession and much to admire. It’s only that, in this particular case, I don’t believe the law happens to be quite as much of a ass as they do.”

When litigants asked his court to create new tort law under the Fourth and Fourteen Amendments, Gorsuch was unconvinced: “Ours is the job of interpreting the Constitution. And that document isn’t some inkblot on which litigants may project their hopes and dreams …, but a carefully drafted text judges are charged with applying according to its original public meaning.”

And when the Obama administration forced religious organizations and closely held for-profit corporations to violate their religious beliefs by providing contraceptive coverage for their works, Gorsuch was equally ready to stand up for religious liberty rights that are actually in our laws and Constitution. Did he do it because he doesn’t care about “women’s access to health care services” or loves nuns? No, he did it for the same reason he protected the religious rights of a Native American felon who wanted access to the prison’s sweat lodge: he applies the law evenhandedly to all.

Is this the record of a “radical” or “extreme” nominee? That’s easy to answer. A better question is this: Will Senate Democrats join the hysterics over Neil Gorsuch and try to deny this excellent nominee an up-or-down vote?

Carrie Severino is the chief counsel and policy director of the Judicial Crisis Network. She was previously a law clerk to U.S. Supreme Court Justice Clarence Thomas and to Judge David B. Sentelle of the U.S. Court of Appeals for the D.C. Circuit.