The Democrats v. Gorsuch

National Review Online
Wednesday, March 29, 2017

Judge Neil Gorsuch is a mainstream conservative judge who has earned the respect of liberals in the legal world, and this fact has caused no end of frustration to Democrats who are resolved to block a vote on his nomination to the Supreme Court. Since they do not control the Senate, they could not do what the Republicans did last year and refuse to consider the nomination of a president they oppose. Hearings took place, and Gorsuch acquitted himself well. Democrats are having to invent spurious justifications for their opposition.

They have highlighted, and distorted, three of the judge’s decisions. Cecile Richards, the head of Planned Parenthood, says that Gorsuch “believes that actually bosses should be able to decide whether or not women should be able to get birth-control coverage.” We have no evidence that he believes any such thing. He did not rule that businesses should be able to refrain from providing insurance coverage for forms of birth control to which they object; he ruled that under the religious-freedom law Congress enacted, they can refrain. (He did not rule, either, that the law allows employers to stop their employees from buying whatever coverage they like.)

Senator Al Franken (D., Minn.) says that Gorsuch “sided with” a trucking company that fired an employee who disobeyed a company directive by driving his vehicle to escape freezing conditions. But Gorsuch did not say that the company made the right decision or even that the law should have allowed it to fire the driver; he merely said that the law as it stood did allow it to fire him.

Finally, several senators have excoriated a decision in which Gorsuch ruled against the family of an autistic child who sought help beyond what the local schools were willing to provide. The Democrats claim that a Supreme Court ruling that came down during the hearings repudiated the legal standard Gorsuch applied. They neglect to mention that Gorsuch was applying a precedent of his circuit, as he was bound to do; that the Supreme Court itself mentioned that it had left the law in this area confused, something only it could resolve; and that a liberal Democratic appointee had joined in Gorsuch’s decision.

The theme running through all of these criticisms is that Democrats want Gorsuch to reach results that run counter to the law — a point that Senator Kamala Harris (D., Calif.) put with characteristic artlessness in complaining about Gorsuch’s attention to “legalisms.” These criticisms thus testify to the judge’s fitness for the Supreme Court.

When they are not distorting cases, the Democrats have been unable to mount a coherent case. Thus they say that Judge Gorsuch is simultaneously too deferential to President Trump (because he has failed to denounce the man who nominated him) and not deferential enough (because he has said that executive-branch agencies have too much leeway to apply their own interpretations of the law).

And they have complained, oh have they complained, about the Republicans’ refusal to allow President Obama’s nominee, Judge Merrick Garland, to sit on the Supreme Court. The Constitution gave the Republicans the right not to schedule hearings for Garland. It gives the Democrats the right to complain about it, and even to filibuster Gorsuch’s nomination in response. It also gives the Senate Republicans the power to end filibusters of Supreme Court nominees. Gorsuch is a good enough nominee, and the cause of getting judges committed to the rule of law is sufficiently important, that Republicans should exercise that power should it prove necessary.