“A Truly Terrible Idea” – An Outcome-Oriented Left’s Bad Line of Attack Against Judge Gorsuch

The left is going through what the right went through after 2008 – a quasi-“tea party” of sorts – and it is quite the spectacle. After celebrating the election of a hip, progressive-minded President, and hearing things like the country was ostensibly headed towards a permanent democratic majority, it undoubtedly came as quite a shock as the left lost the House, then the Senate, and now the White House. And the hard left – the faction that hates the Democratic Party for being a bunch of weak-kneed sell-outs – wants scalps. What bigger scalp could there be than the Supreme Court nominee? From Politico, a letter to Senate Democrats from the NARAL/MoveOn.org crowd:

It has been just over one month since President Trump nominated Judge Neil Gorsuch to the U.S. Supreme Court. During this time, Democrats have failed to demonstrate a strong, unified resistance to this nominee despite the fact that he is an ultra-conservative jurist who will undermine our basic freedoms and threaten the independence of the federal judiciary. We need you to do better. Judge Gorsuch is not a mainstream nominee. He is more conservative than Justice Scalia, has an extreme ideological agenda supported by some of the most dangerous ultra-conservative and white nationalist groups, and has failed to protect everyday Americans’ constitutional rights in favor of propping up corporations and special interests. As a judge, Gorsuch opposed reproductive freedom and women’s rights; LGBTQ rights; civil rights; workers’ rights; immigrants’ rights; disability rights; environmental protections; and sought to increase the influence of corporate money in our elections. Imagine how much damage he could do with a lifetime appointment to the Supreme Court. . . . Judge Gorsuch’s record is clear – so clear, in fact, that we already know he is an unacceptable nominee for the Supreme Court. President Trump is using Gorsuch to elevate his extreme agenda with a lifetime appointment to our nation’s highest court. As senators, we need you to stand up to this reckless agenda.

Senator Schumer, reading the tea leaves and realizing his left flank is ready to order a coup attempt, just took to the floor of the United States Senate this morning to say this:

Now Judge Gorsuch may sometimes express sympathy for the less powerful verbally. But when it comes time to rule . . . he has far too often sided with the powerful few over everyday Americans trying to get a fair shake. . . . Judge Gorsuch’s record demonstrates he prefers CEOs over citizens, executives over employees, [and] corporations over consumers. . . My friend . . . says there is no principled reason to be opposed to Judge Gorsuch. Yeah, if your principles say that the law should be used time and time again to support powerful corporate interests over average americans, maybe there’s no principled objection. But for most Americans, the overwhelming majority of whom want the courts to bring justice to the people who have less power and the court is their last resort, there’s plenty of principled reasons to vote against Judge Gorsuch. . . . Donald Trump campaigned on helping average people. His nominee sides with corporate interests against average people . . . . [F]rom all indications, Judge Gorsuch is not the kind of nominee who has sympathy and helps average Americans . . . .

I get that the left is upset about the Garland Episode. And if Democrats wanted to stand their ground on the basis that Judge Garland deserved a hearing and a vote, they would be on more (though not perfectly) defensible terrain. But this effort to find substantive flaws with Judge Gorsuch is a failing one, and it is going to blow up in the Democrats’ faces when the hearings roll around next week. Having followed this process fairly closely, I can say confidently that for every case in which Gorsuch “sided” with “large corporate interests” against the “little guy,” there’s a case where he ruled for the “little guy” against “large corporate interests.” More importantly, Judge Gorsuch is not the sort of jurist who “sides” with parties before him – rather, he applies the law as he understands it, regardless of the outcome.

Before getting to the crux of the matter, first recognize that one of Senator Schumer’s lines of defense for Justice Sotomayor during her confirmation hearings was that, in immigration cases, she “ruled in favor of the government – that is, against the petitioner seeking asylum, the immigrant seeking asylum – 83 percent of the time,” showing that she was not “an activist judge” but rather was a fair-minded and impartial jurist. So, the fact that Gorsuch allegedly “sided” with employers 66% of the time in employment discrimination cases should also show he is not an “activist” but rather a fair and impartial jurist. Instead, Schumer invokes that statistic to ostensibly argue that Gorsuch is just a pro-corporate shill that Trump is looking to illegitimately install on the Supreme Court – or something like that anyway.

The hypocrisy is palpable, but it’s not the biggest mistake Democrats and progressives are making. Consider former Souter clerk and by-no-means-conservative Harvard Law Professor Noah Feldman’s piece out this morning in Bloomberg, titled “Democrats’ Misguided Argument Against Gorsuch.”

I’m not sure who decided that the Democratic critique of U.S. Supreme Court nominee Judge Neil Gorsuch would be that he doesn’t side with the little guy. It’s a truly terrible idea. . . . [S]iding with workers against employers isn’t a jurisprudential position. It’s a political stance. And justices – including progressive justices – shouldn’t decide cases based on who the parties are. They should decide cases based on their beliefs about how the law should be interpreted.

Prof. Feldman looks to the Bible, quoting Deuteronomy 16, which instructs the Jewish people, “You shall appoint judges . . . throughout your tribes . . . and they shall render just decisions for the people. You must not distort justice; you must not show partiality. . . . Justice, and only justice, you shall pursue, so that you might live and occupy the land that the LORD your God is giving you.” Feldman points out that the whole point of having “a government of laws and not of men” is that the law will apply evenhandedly regardless of any given individual’s circumstances. This, in the long run, is better for the “little guy,” since the wealthy and powerful have a much easier time rigging the system when government is corrupt/pay-to-play. The hoi polloi don’t want a system where judges rule based on their personal predilections or preferred outcomes, particularly since federal judges are generally one percenters who run in social circles with all the other wealthy and powerful people in this country and are likely to personally prefer outcomes that would go over well with the Georgetown cocktail circuit.

Feldman looks at the three major cases that liberals are citing in support for their narrative about Gorsuch, explaining that Gorsuch’s opinions in those cases are “perfectly defensible,” “a plausible reading of the existing precedent,” and “might even be correct.” Feldman then concludes:

It’s perfectly fine to resist Gorsuch for not adhering to a progressive jurisprudence that takes seriously the government’s duty to regulate the market. But it isn’t fine to say he should side with workers against employers or parents against school districts. The rule of law isn’t liberal or conservative – and it shouldn’t be.

Here’s the bottom line: Everyone has and is entitled to their political views, their policy preferences, and their desired outcomes in important cases that make their way up to the Supreme Court. Additionally, I, for one, agree with Justice Kagan that nominations hearings shouldn’t be pro forma sessions where the Senators ask legitimate questions and the nominees give a series of non-answers – though, to be fair, nominees’ reticence to give straight answers is an understandable, bipartisan tradition stemming from the Bork travesty. On the other hand, confirmation hearings shouldn’t be the “plebiscite” that Justice Scalia presciently warned us about nearly 25 years ago, where the hearings amount to little more than “question and answer sessions in which Senators go through a list of their constituents’ most favored and most disfavored alleged constitutional rights, and seek the nominee’s commitment to support or oppose them.” Rather, hearings should focus on the nominee’s jurisprudential philosophy, his or her methods for deciding hard cases, his or her views on how to understand and interpret the Constitution, his or her views on the canons of statutory interpretation, etc.

The left is making a huge mistake in trying to force Democrats in the Senate to oppose Gorsuch on the basis of a handful of outcomes they disapprove that suggest to them he is for “big” [fill in the blank] and against the “little guy.” Cases shouldn’t turn on outcomes that the judge prefers, and the law must apply evenhandedly no matter how sympathetic the losing side is or how unsympathetic the winning side is. As the Chief Justice said in his confirmation hearings over a decade ago,

If the Constitution says that the little guy should win, the little guy’s going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy’s going to win, because my obligation is to the Constitution. That’s the oath.

A certain current Supreme Court nominee recently put it in even more compelling terms, in a case where he sided with the literal “little guy” – a middle schooler arrested in school for childish pranks (“generat[ing] several fake burps” disruptively in class) whose parents sued to hold the police officer accountable for excessive use of force – against law enforcement:

Often enough the law can be “a ass – a idiot,” Charles Dickens, Oliver Twist 520 (Dodd, Mead & Co. 1941) (1838) – 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.

A.M. v. Holmes, 830 F.3d 1123, 1170 (10th Cir. 2016) (Gorsuch, J., dissenting).

Judge Gorsuch is among the best and brightest in the federal judiciary – a great writer, a thoughtful decision-maker, and a judge mindful of the limits of his office and cognizant of his obligations to the laws and the Constitution over and above his own preferences. The left’s misguided attack against him is factually uninformed, and it is both ill-fated and ill-advised, as it exposes these groups as outcome-oriented cynics who prefer the “rule of men” – their “men,” anyway – over the objective, impartial, and evenhanded rule of law. The nation deserves better, and our third branch of government must not give in to such cynicism that law is merely politics by another name. Thankfully, it looks like the nation will be blessed soon enough with the confirmation of a judge who believes, like John Adams wrote so many years ago, that we have “a government of laws and not of men,” and that it is his duty to apply those laws no matter the outcome. My only hope is that more jurists who think and feel the same join his company in the coming years.

One comment

  1. Ronald Nolette · ·

    `Now you are asking for the hard left to be reasonable- that is mission impossible. Gorsuch will be confirmed as well as one or two more SCOTUS appts. The only thing to be determined is how bad the democrat party will suffer in the elections for behaving like petulant children.

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