Judge Neil Gorsuch deserves better than the treatment he received at the hands of Democrats in this week’s confirmation hearings. More importantly, the rule of law—a principle so dear to this country—deserves better.
Democrats, who are now coalescing under the mantle of The Resistance, are doing their level best to ignite their base by opposing anything and anyone associated with President Trump. But as Geoffrey Kabaservice writes in Politico, this obstructionism and ideological rigidity comes with costs:
[T]he Resistance is starting to force the Democratic Party toward its extremes and away from long-held norms of bipartisan give-and-take. Resisters threaten Democratic politicians with terrible retribution if they vote in favor of any of Trump’s nominees or major Republican legislation, regardless of merit. As a result, Democratic officeholders have less and less to say about the value of compromise, seemingly fearing that anything they say will be seen as “normalizing” and “legitimizing” the Trump presidency.
That extreme agenda is now being leveled at Judge Gorsuch. Much like Judge Robert Bork before him, Democrats are setting aside reality, instead opting to obstruct Gorsuch’s nomination through attempts at systematic defamation and vilification.
The tack Democrats have taken is attempting to paint Gorsuch as a shill for corporate America and an opponent of the little guy.
“I fear confirming you would guarantee more … decisions that continue to favor powerful corporate interests over the rights of average Americans,” Sen. Al Franken (D-Minn) said in his open remarks.
Sen. Elizabeth Warren attempted the same line of attack, claiming that Gorsuch “has sided with employers who deny wages,” “sided with employers who denied retirement benefits to their workers,” and “sided with big insurance companies against disabled workers.”
Ronald A. Cass, writing in USA Today, explains how wrongheaded this line of attack is:
Despite the cartoon-version descriptions of a judge who “has sided” with the wrong people, the judge’s job isn’t to choose David vs. Goliath, to stand up for the little guy, to smack down the big guy.
The way little guys get protected isn’t to have a judge who votes on his or her gut sympathies. Instead, it’s to have a legal system that functions according to rules, legitimately enacted by constitutionally appropriate bodies and procedures, enforced in principled, predictable ways by judges who read the law carefully and apply it as written, no matter what the judge feels about the people on either side of the case.
Despots want judges who make decisions based on who is helped or hurt.
Judge Gorsuch made a similar argument in his opening statement to the Senate Judiciary Committee, arguing that the true role of judges is not to be “politicians in robes” but instead to “apply the law impartially.”
“Sometimes the answers we reach aren’t the ones we personally prefer. Sometimes the answers follow us home at night and keep us up,” Gorsuch explained. “But the answers we reach are always the ones we believe the law requires. And for all its imperfections, I believe the rule of law in this nation truly is a wonder, and that it’s no wonder that it’s the envy of the world.”
Later in his testimony he gave an elegant explanation of how the rule of law is the unheralded stitching that holds our fragile democracy together.
“If judges were just secret legislators, declaring not what the law is but what they would like it to be, the very idea of a government by the people and for the people would be at risk. And those who came before the court would live in fear, never sure exactly what the law requires of them, except for the judge’s will.”
Then again, Democrats have long sought to turn the federal judiciary into a shadow legislature, advancing interpretations of the law that were not able to be achieved through the democratic process. And that’s why Judge Gorsuch is getting such a grilling. Never mind that he is supremely qualified for the position (which, mind you, used to be enough for a confirmation), Democrats are upset that he has the audacity to refuse to read words, context and intent into statutory text.
That occasionally leads to unpopular decisions ( I’m reminded of Antonin Scalia’s “STUPID BUT CONSTITUTIONAL” stamp). But they are the decisions that were supported by the elected-branches of government. To undo that rule of law would lead to a degradation of our democracy. Sadly, Democrats seem to be willing to extol that as a virtue in their nonsensical condemnation of Judge Gorsuch.