On Monday, the Senate Judiciary Committee held a hearing on President Donald Trump’s Supreme Court nominee, Appellate Judge Neil Gorsuch. The question and answer sessions will follow on Tuesday and Wednesday. While Republicans showed nothing but respect, more than a few Democrats questioned Gorsuch, suggesting he would favor corporations over people.
Here is a brief summary of the hearing’s main events.
1. John Elway endorsed Gorsuch — on Broncos letterhead.
Neil Gorsuch is a Coloradan, through and through. Both of Colorado’s senators, Republican Cory Gardner and Democrat Michael Bennet, agreed with the late Justice Antonin Scalia that California does not count as the West, and that it is important for the Supreme Court to be “geographically diverse.” Gardner declared, “I am certain Judge Gorsuch will make Colorado proud.”
In answer to that, fans of the NFL Team the Denver Broncos might reply that he already has. On Monday, Gorsuch received the support of former Broncos Quarterback John Elway, an immortal star in Colorado’s eyes. The two-time Super Bowl champion, who currently serves as executive vice president of football operations and general manager for the Denver Broncos, had glowing praise for Gorsuch.
“It is with my highest recommendation that I support Judge Neil Gorsuch’s nomination to the United States Supreme Court,” Elway wrote on official Broncos letterhead. “As a native of Colorado, Neil has demonstrated tremendous intelligence, character and fairness while serving for more than a decade on the United States Court of Appeals for the Tenth Circuit. His credentials, integrity, and sound moral compass are major reasons why he’s already received so much bipartisan support for his nomination.”
Elway added that “Neil is a big Denver Broncos fan, and I can tell you that I’m a big fan of his.”
— Peter Marcus (@MediaMarcus) March 20, 2017
Following the infamous confirmation hearings for Supreme Court Justice Clarence Thomas, it should come as no surprise that Gorsuch’s judicial philosophy became the target of Democrat attacks on Monday. Thomas took a great deal of flak for his support for natural law, a legal philosophy tracing back to Thomas Aquinas, if not further. Similarly, Gorsuch was attacked for supporting originalism.
“I find this originalist judicial philosophy to be really troubling,” California Senator Dianne Feinstein declared. “In essence, it means the judges and courts should evaluate our constitutional rights and privileges as they were understood in 1789. However, to do so would not only ignore the intent of the framers that the Constitution would be a framework on which to build, but it would severely limit the genius of what our Constitution upholds.”
Feinstein argued that the Constitution is a “living document,” and stigmatized anyone who might disagree as a misogynistic homophobic racist who supports segregation. No, seriously.
“In 1789, a population of the United States was under 4 million. Today, we’re 325 million and growing,” the senator explained. “At the time of our founding, African-Americans were enslaved. It was not long after women had been burned at the stake for witchcraft and the idea of an automobile, let alone the Internet, was unfathomable.”
Given these differences, Feinstein argued that “if we were to dogmatically adhere to the originalist interpretation, then we would still have segregated schools and bans on interracial marriage. Women wouldn’t be entitled to equal protection under the law and government discrimination against LGBT Americans would be permitted.”
Feinstein is so off-base, she deserves to be struck out on numerous counts. First, being an originalist means accepting the original meaning of the words of the Constitution — it doesn’t mean rejecting duly passed Constitutional amendments, as with slavery or women’s rights.
Indeed, in 2010, President Obama’s Supreme Court nominee, Elena Kagan, testified that “we are all originalists.” Here’s how she explained it: “Sometimes [the founders] laid down very specific rules. Sometimes they laid down broad principles. Either way, we apply what they tried to do.”
When Kagan declared herself an “originalist,” no one accused her of wanting to return America to the time of witch-burnings, slavery, segregation, and worse. Why the double standard with Gorsuch?
3. Corporations and “the little guy.”
Throughout the hearing, Democrats accused Gorsuch of predictably favoring corporations and corporate interests over “the little guy.” A few Democrats really stood out in their condemnations.
Rhode Island Senator Sheldon Whitehouse declared that the Supreme Court always favors Republicans and corporations. “If they are a big Republican interest, they will win, every time. If they are corporations against a human being, they will win every time. Your honor, every time seems like a lot.”
Whitehouse mentioned Burwell v. Hobby Lobby Stores, a case Judge Gorsuch personally handled before it went to the Supreme Court, characterizing the decision as “corporations having religious rights over an employee’s healthcare.” The Rhode Island senator added that “Justice Roberts sat in that very seat, told us he just would call balls and strikes and then led his five-person Republican majority on that activist five-four political shopping spree.”
Whitehouse’s arguments were echoed by Hawaii Senator Mazie Hirono, who argued that Gorsuch has consistently ruled against “the little guy.”
“You rarely seem to find in favor of the little guy,” Hirono declared. She mentioned TransAm Trucking, Inc. v. Admin. Review Brd., a case in which Gorsuch sided with the company over its employee, who was fired for operating his truck in a way expressly forbidden by the employer. She also mentioned the Hobby Lobby case.
“The facts in each of these cases might be different, but there is a clear pattern to your writing,” Hirono said. “You consistently choose corporations and powerful interests over people.”
But this does not square with the testimony of Marcy Glenn, a Denver attorney and Democrat, who recalled two cases before Gorsuch in which she represented underdogs. She defended a college student facing criminal libel charges for mocking a professor, and homeowners sued over illnesses stemming from an old nuclear weapons facility outside Denver.
“He issued a decision that most certainly focused on the little guy,” Glenn told The Seattle Times.
What about Hobby Lobby and TransAm? Well, in the first case, Gorsuch upheld the rights of a business owner to follow his religious beliefs against abortion, and limited the Obama administration’s contraception mandate to include only forms of contraception that did not also constitute abortifacients. In other words, the ruling did not allow Hobby Lobby to refuse to provide coverage for any contraception, only certain forms of it. And Gorsuch ruled for a company against the Obama administration.
In TransAm, Gorsuch ruled for the company against its fired employee. But the circumstances are important. As National Review‘s Ed Whalen pointed out, the law in question allows employees to “refuse to operate a vehicle” out of safety concerns — not to operate the vehicle as they see fit. The truck driver actively drove the truck against company orders, so the law in question did not prevent the company from firing him.
As Texas Senator Ted Cruz noted, “You need to take a long look in the mirror if one day you find yourselves attacking nuns, the Little Sisters of the Poor, and then you find yourself orating on the need to protect the little guy. A judge’s job is not to protect the little guy or the big guy. A judge swears an oath to uphold the Constitution and follow the law, fairly.”
It is exactly this kind of careful examination of the law which would make Gorsuch such a great Supreme Court justice.
4. Merrick Garland.
Throughout the Gorsuch hearing, Democrats mentioned Court of Appeals Judge Merrick Garland, President Obama’s Supreme Court pick to replace Antonin Scalia after his death. While Democrats complained that Republicans did not treat Garland the way he deserved to be treated, they engaged in effective grandstanding, saying they would give Gorsuch the treatment Garland deserved.
Colorado Senator Michael Bennet argued that the Senate “failed to do its duty to Merrick Garland,” and so “it is tempting to deny Judge Gorsuch a fair hearing, but two wrongs never make a right.”
Bennet went even further, tying the Garland denial to “President Trump’s reckless attacks on the judiciary,” which, he argued, “like the president’s attacks on the free press, have no precedent in our republic.” (“Yellow Journalism” is calling from the Progressive Era.)
But the Democrats’ grandstanding on Garland overlooked longstanding Senate tradition. As Senator Cruz noted, “for 80 years, the Senate had not filled a Supreme Court vacancy that occurred during a Presidential election year and the Senate majority decided it would not become the first in eight decades.”
This decision was not just a political ploy by Republicans, Cruz argued, it was a way to provide the people with a choice. “A choice between an originalist view of the Constitution represented by Justice Scalia or a progressive activist view represented by Barack Obama and Hillary Clinton.” Cruz recalled that “we advised President Obama that we would not consent to a Supreme Court nominee until the people, in the midst of a presidential election, were able to choose.”
“And in November, the people spoke, in what was essentially a referendum on the kind of justice that should replace Justice Scalia — the people chose originalism, textualism, and rule of law.”
While the founders intended the Supreme Court not to be political, Cruz’s argument makes sense — especially following the Court’s ruling in Obergefell v. Hodges, which legalized gay marriage. In judicial activism at its height, Justice Kennedy wrote a new right into the Constitution — the right of homosexual couples to dignity. It is arguable that this ruling cost Hillary Clinton the presidency.
5. “Humability:” humility and ability.
In his introduction of Judge Gorsuch, Neal Katyal, a professor at Georgetown University’s Law Center, coined a new term: “Humability.”
“Judge Gorsuch has humability — humility and ability,” Katyal declared. He described the Supreme Court nominee as “a first-rate intellect and a fair and decent man,” with a firm “dedication to the law.”
Katyal, a Democrat, lamented that Merrick Garland had been rejected by the Senate, calling that fact “a tragedy of national proportions,” and he declared that “there is less than a handful of people that the president could had nominated to even start to repair that loss of trust,” but Gorsuch is one of them.
The Democrat lawyer noted that the American Bar Association gave Gorsuch its highest rating, and said that Gorsuch is a welcome corrective to a president who “has displayed open contempt for the courts.”
“As a judge, [Gorsuch] has displayed an absolute commitment to the rule of law and judiciary independence,” Katyal declared.
That humility and legal excellence were on clear display when Gorsuch himself spoke. He thanked a long list of people — his wife, of whom he said he was “in awe,” his parents, his daughters, and his legal heroes. Gorsuch declared, “Long before we’re Democrats or Republicans, we’re Americans,” and he said, “I am acutely aware of my own imperfections,” but he promised “to be a faithful servant to the Constitution and the laws of this great nation.”
Finally, he quoted from the tombstone of Increase Mather, a lawyer who has faded into obscurity but whose life Gorsuch planned to imitate.
As a lawyer, he was faithful and able.
As a judge, patient, impartial and decisive….
In private life he was affectionate and mild.
In public life he was dignified and firm.
Party feuds were allayed by the correctness of his conduct.
Calumny was silenced by the weight of his virtues.
And rancor softened by the amenity of his manners.
America would truly be blessed to have a generation of lawyers after this pattern.