The Democrats' Intellectually Weak Attacks on Gorsuch
In preparation for Judge Neil Gorsuch’s confirmation hearings, which begin today, Senate Democrats have tried desperately to fit the exceptionally qualified nominee into their predictable and worn-out partisan storylines. In the process, they’ve done little to undermine Gorsuch’s credibility and an awful lot to demonstrate their own intellectual weakness.
One of the points the Democrats have been making is that the supposedly autocratic style of President Trump means that federal judges will need to exercise judicial independence more than ever, and that Gorsuch has somehow failed to show that independence. For example, Senator Schumer and others have complained that President Trump presented a litmus test for his nominee, promising to nominate a judge who was, for example, pro-life and pro-Second Amendment. They claim that this approach threatens judicial independence – while ignoring that their preferred candidate, Hillary Clinton, assured a Democratic audience, “I have a bunch of litmus tests,” and proceeded to name decisions she would want her nominee to overturn and Democratic policies she would want her nominee to protect.
What’s more, Judge Gorsuch is one of the most articulate defenders of judicial independence currently serving on the federal bench. He wrote in Gutierrez-Brizuela v. Lynch that judges are “insulated from political pressures with the job of interpreting the law and applying it retroactively to resolve past disputes.” In U.S. v. Nichols, he explained that “ours is supposed to be an independent judiciary making decisions based on the legal merits without respect to the vagaries of shifting political winds.” He would certainly agree with the man he’s been nominated to succeed, Justice Antonin Scalia, who said that federal judges “have life tenure . . . precisely so that we will not be influenced by politics, by threats from anybody.”
Democrats also complain that Judge Gorsuch’s textualist approach to the law, by which he interprets laws according to their plain meaning as written, makes him a judicial radical. In fact, Judge Gorsuch clearly swims in the mainstream of American jurisprudence. According to one study, 98% of the opinions he wrote for the Tenth Circuit have been unanimous, even though that court tilts to the left. Seven out of twelve of its active judges were appointed by Democrats.
What’s more, his opinions have been unanimously upheld by the Supreme Court four times. These numbers show that he’s a consensus builder, which is why the Senate confirmed him to the federal bench by voice vote in 2006. It’s why his nomination has received support from many liberals, including a former acting solicitor general in the Obama administration. And it’s why the American Bar Association has twice given him its highest rating.
Finally, it’s remarkable to hear Schumer and others express concern that Judge Gorsuch will not answer specific questions about, for example, President Trump’s immigration order. This is a disingenuous complaint in two regards. First, they know very well that if Gorsuch were to answer a question about a specific case, and that case came to the Court, he would have to recuse himself. Canon 5 of the ABA’s Model Code of Judicial Conduct prohibits judicial candidates from, “with respect to cases, controversies, or issues that are likely to come before the court, mak[ing] pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office.”
This emphasis on impartiality is why one nominee explained to a Democratic lawmaker after confirmation hearings: “It is inappropriate, in my judgment, to seek from any nominee for judicial office assurance on how that individual would rule in a future case. That judgment was shared by those involved in the process of selecting me. No such person discussed with me any specific case, legal issue or question in a manner that could reasonably be interpreted as seeking any express or implied assurances concerning my position on such case, issue, or question.”
The nominee was Ruth Bader Ginsburg, writing to Senator Joe Biden in 1993, shortly before she was confirmed 96-3. Nonetheless, Senator Schumer likes to call this impartiality the “Roberts approach,” as if during his 2005 hearings John Roberts was dodging questions rather than performing his ethical obligations. Today, Judge Gorsuch is only doing what Justices Ginsburg, Roberts and other jurists have realized is crucial to the trust that Americans place in them.
Why do Democrats even bother with these feeble arguments against Gorsuch? The reason is simple: they don’t want him on the court because they want to transform the judiciary into a third political branch, one populated by liberal activists who either rubber-stamp legislation or create new progressive law on their own. This desire to corrupt the proper role of judges – and indeed, to undermine judicial independence and the separation of powers – is why despite all of Judge Gorsuch’s obvious credentials, not a single Democrat has committed to giving him an up-or-down vote and why Senators Schumer and Blumenthal have threatened to filibuster.
The problem for Democrats is that Judge Gorsuch is such an obviously qualified nominee – Columbia undergraduate, Harvard Law, successful private practice, exemplary federal judge –that their efforts to smear him are obviously weak, both politically and intellectually. Judge Gorsuch is an exceptional nominee, one who leaves Democrats flailing in the dark in their desperate attempts to make him look otherwise.
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.