“Boy Scout” Supreme Court Nominee Gorsuch Attacked by the Left and the Right

WASHINGTON, DC - JANUARY 31: Judge Neil Gorsuch delivers brief remarks after being nominated by U.S. President Donald Trump to the Supreme Court during a ceremony in the East Room of the White House January 31, 2017 in Washington, DC. If confirmed, Gorsuch would fill the seat left vacant with the death of Associate Justice Antonin Scalia in February 2016. (Photo by Chip Somodevilla/Getty Images)

Neil Gorsuch, U.S. Court of Appeals judge for the 10th Circuit and President Trump’s appointee to replace Antonin Scalia’s seat on the Supreme Court, spent last week answering questions from the Senate Judiciary Committee members.

While the Republicans relatively slim majority still virtually guarantees a vote before the full Senate, it does not necessarily make the confirmation effort a simple one. Gorsuch still potentially faces complete opposition from Democrats.

This remains so despite the reality that most Republicans voted to confirm more progressive jurists Sonia Sotomayor and Elena Kagan when they were nominated by President Obama. Some Democrats who sit on the Judiciary Committee such as Senator Al Franken and Dianne Feinstein are blaming Republican refusal to hold hearings on President Obama’s nominee (Judge Merrick Garland). Rather than taking a side in what he accurately described as a “political” dispute, Gorsuch praised Garland’s merits as a judge and humbly presented himself before the Senators.

What some observers on the left and right have tried to characterize as evasive or misleading responses have actually been earnest efforts to answer probing questions while remaining loyal to judicial ethics. Conservatives want the judge to essentially wink at them during the confirmation hearing, a signal that he intends to be make overturning the landmark abortion holdings a reality.  This conservative judge with a boy scout demeanor holds himself to a standard of integrity that many consider quaint and naive. but is actually much needed in the nation’s capital.

Unfortunately, hanging over the judge’s nomination are the not-so-politically-savvy guarantees made by President Trump during his campaign (e.g., that his Supreme Court nominee would “automatically” overturn 1973 decision in Roe v. Wade and other abortion cases).

Many observers fail to appreciate that any sort of litmus test for judicial nominees is at inevitable tension with judicial ethical canon prohibiting judges from “pre-judging” the merits of an argument before any briefs are submitted. This is partly why unquestionably pro-life 2016 Presidential contenders Ted Cruz (who sits on the judiciary committee) and Marco Rubio (R-Florida) when on the campaign trail frequently limited their promises to appointing a “strict constructionist” who would adopt an “originalist” interpretation of Constitutional text. This is an approach generally favored by conservative, pro-life litigators.

Senator Lindsay Graham stated in day two of the hearings that for a case such as one concerning a limit on abortions after 20 weeks, he expected only that the judge would wait until briefs were submitted and oral arguments heard and then properly arrive at his decision.

Senator Feinstein and other Democrats went all-out in their effort to reduce Gorsuch as nothing more than a lackey for “big corporations” instead of a protector for “the little guy.” Gorsuch’s calm, neutral demeanor appeared to irritate Senator Dick Durbin, who also claimed the Judge was too friendly to “big corporations”. This suggestion is dubious at best.

The Democrats’ claims were also undermined by Gorsuch’s speeches and writings on a burden generally facing low-income plaintiffs. He has warned that the costly civil discovery process deters plaintiffs from bringing meritorious claims and induced defendants to settle against frivolous claims. Gorsuch persuasively expressed to the Judiciary Committee that these costs obstruct the parties’ 7th Amendment right of access to a jury trial.

Both lines of attack were effectively rebutted by Gorsuch’s record, which include multiple rulings for individual and small business plaintiffs against large corporations and the most intimidating defendant of all – the federal government. Democrats again take for granted that the most imposing party to a civil claim is frequently a federal agency asserting an interest in the litigation.

Gorsuch was adamant in telling Democrat and Republican Senators that he’d decide each case or controversy on the merits, emphasizing that “I can guarantee you nothing more and I can promise you nothing less.” It is in conservatives’ interests that Gorsuch avoid being seen as a puppet for the President who appointed him.

Vermont Democrat Senator Patrick Leahy cited a Congressman’s quote claiming it was imperative the Senate confirm Gorsuch soon so that he could help uphold the Trump administration’s travel policy changes from certain Muslim-majority countries in the Middle East. The judge responded directly that the Congressman “has no idea” how he would rule. He further cited the equal protection, due process, and free exercise clauses as well as the Religious Freedom Restoration Act (1993), in concluding that sweeping bans and “religious tests” have a tough time being constitutionally upheld.

When questioned by Senator Cruz, the judge offered a window into his originalist approach to constitutional interpretation. He remarked that cases such as Kyllo and Jones show the enduring applicability of constitutional protections in the Fourth Amendment even in the face of new technology. Kyllo analogized thermal imaging devices for detecting pot growing operations to “peeping Toms”. The Jones case majority treated placement of a GPS tracking device on bottom of a car as akin to a government agent hiding on the back of a horse carriage.

Of course, listening to Steve Deace, Daniel Horowitz and other conservative commentators, you’d think that Gorsuch was a cartoon wolf in sheep’s clothing.  They’ve launched this effort to cast doubt on the appointee’s judicial philosophy primarily through cherry-picking ambiguous and suggestive statements on the judicial doctrine of stare decisis. This doctrine maintains consistency in the constitutionally established court system and reinforces the hierarchy of adjudication (e.g., In most circumstances, Federal District Court is bound by appellate court in the same circuit. Supreme Court is bound by prior decisions, etc.)  Informed social conservatives are aware of this. But every time Gorsuch refers to Roe v. Wade (1973) and Obergefell v. Hodges (2015) as “settled law” or “the law of the land” some commentators on the right have sounded the alarm bells and declared Gorsuch already a disappointment to social conservative interests.

Numerous pro-life interest groups have rightly urged pro-life Senators to vote for confirming the judge. They’ve been fighting the long game for decades and understand that just as Dredd Scott v. Sanford (1857) and other Supreme Court decisions were “binding law” for over fifty years, the Court later corrected course and overruled those opinions while still operating under stare decisis. The doctrine commands adhering to binding precedent unless and until fundamental errors are shown in the original decision, determined through applying a factor test. For abortion opponents, this theory is especially attractive because of developing medical technology which even the majority in landmark abortion rulings recognized could crucially alter Court’s analysis in future cases.

More importantly, Gorsuch’s record on the bench demonstrates a profound analytical approach and effective writing ability similar to the late Justice Scalia. From these decisions, as well as comments in his book on the “inviolability of human life” interests in end-of-life decision-making, some right to life interest groups are wisely betting that Gorsuch’s personal values will eventually merge with his application of stare decisis in a significant abortion case. Deace and others may be prematurely casting doubt on this because they, like many who are extremely pro-Trump or anti-Trump, perhaps cannot fathom any of their more extreme predictions on the Supreme Court being remotely off the mark.

The Supreme Court vacancy was a primary reason motivating many voters to reluctantly support Trump. One could foresee that NeverTrump commentators feel compelled to undermine that calculation. Just as Brown v. Board of Education (1954) established a new Constitutional precedent overturning Dred Scott, Gorsuch and other justices will have a chance to reevaluate some of the fundamental assumptions made in Roe holding about whether, when reconciling two competing rights, the Constitutional requires that government err towards protecting the lives of unborn babies. Gorsuch will be well suited to help persuade swing vote justices such as his former boss Anthony Kennedy to arrive at a pro-life majority decision without running afoul of stare decisis doctrine.

It is unlikely that eight Democrats will crossover to vote in favor of confirmation, which means they are baiting Senate Republicans to use the nuclear option. This is their own fault, as the Democrats threatened to do just that in the event that Hillary Clinton won the Presidential election and nominated a liberal jurist to the Court.
For conservative critics, Deace personally claimed to prefer that “Ted Cruz or Mike Lee” nominated because their pro-life views were more pronounced. This ignores some harsh truths. Trump’s transition team originally offered Cruz the nomination and the Texas Senator turned it down, preferring the political realm to the stoic work life of a Justice. He and Lee will almost certainly vote to confirm Gorsuch because they understand that a new associate justice does not want to be confirmed through shrewd Senate maneuvers such as the nuclear option. They further recognize that Scalia himself did not wear a Right to Life t-shirt underneath his suit at his own confirmation hearings.

Gorsuch’s conservative detractors would be wise to recall the main lesson in a famous Aesop fable.  Now that means tempering their criticism and toning down on the fear mongering, lest they risk squandering their credibility by prematurely crying wolf.

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