By the end of the third day of confirmation hearings for Supreme Court nominee Neil Gorsuch, it was clear that little fight was left in the Democratic senators on the Judiciary Committee.
Following a contentious day of questioning on Tuesday, Democrats seemed resigned to Gorsuch’s confirmation on Wednesday as it became clear that they were failing to land any decisive blows.
As the day progressed, Democratic senators seemed more interested in influencing the views of the future justice than in trying to prevent his confirmation.
The major themes of Democrats’ questions on Wednesday were no different than those on Tuesday. That included attempt after unsuccessful attempt at getting Gorsuch to express his views on Supreme Court precedents, hot-button legal issues, and hypothetical future cases.
The comments of Judiciary Committee Democrats revealed both their frustration at Gorsuch’s reticence and their wish for a nominee who will promise results-oriented judging and adherence to a “living” Constitution.
Sen. Dianne Feinstein, D-Calif., expressed regret that Gorsuch would not reveal his judicial philosophy, arguing that that “would help people understand that he is open for the ability for growth to happen in the law.”
Meanwhile, Sen. Dick Durbin, D-Ill., complained that “we have no idea where Judge Gorsuch is on Roe v. Wade, on women’s health care, and critical issues.”
Democrats should not have been surprised by Gorsuch’s reticence. This has been the norm for Supreme Court nominees ever since Robert Bork’s frank remarks at his 1987 hearings sunk his chances for confirmation.
Committee Democrats seemed particularly frustrated at Gorsuch’s refusal to opine on the sacredness and unassailability of longstanding Supreme Court precedents striking down desegregation and establishing a constitutional right to contraception, as well as on more recent precedents concerning gay rights.
Concerning Griswold v. Connecticut, the contraception case, Gorsuch recited the factors the court should consider when weighing precedent. Regarding Brown v. Board of Education, Gorsuch called it “a great and important decision” but would go no further.
As for the gay rights precedents—Lawrence v. Texas (2003) and Obergefell v. Hodges (2015)—Gorsuch would say only that they are “due all the weight of a [Supreme Court] precedent.”
Democrat senators know full well that Griswold and Brown are in no danger of being overturned. So why all the concern?
One can only conclude that Democrats’ persistent questions about those cases were designed to extract a concession that some precedents are set in stone, with an eye to tripping Gorsuch up if he failed to say that liberal favorites like Roe v. Wade are similarly unassailable.
Gorsuch did not fall for the trap. Instead he explained that were he to endorse even longstanding and almost universally accepted precedents, he would be compromising his impartiality as a judge.
After all, when parties come into court arguing that popular precedents should be overruled, they deserve the same impartiality as any litigant. Were it otherwise, the Brown and Lawrence decisions, each of which required the court to overrule its own precedent, would not have happened.
Another theme that committee Democrats continued to hammer away at on Wednesday was their charge that Gorsuch tends to rule against the “little guy.”
Sen. Al Franken, D-Minn., one of the many Democrats pursuing this line of attack, expressed concern that Gorsuch’s confirmation would result in “another 5-4 Roberts Court making one decision after another that hurts workers, employees,” and “shifts [the law] against the little guy and for the big guy.”
Gorsuch rejected this characterization of his record and reminded Democrats that his job is to faithfully apply the law and “decide the cases without respect to persons.”
All Supreme Court justices take an oath promising that they “will administer justice without respect to persons, and do equal right to the poor and to the rich.”
The incoherence of this line of attack is illustrated by Franken’s inclusion of Citizens United v. FEC in his rant about the “little guy.”
That 2010 Supreme Court decision involved the federal government—”There is no bigger guy,” said Gorsuch—unleashing its regulatory power against a small nonprofit group that wanted to air a documentary critical of Hillary Clinton.
In reality, the “little guy” theme and similar progressive descriptions of how judges should decide cases are really a license for unbridled judicial discretion tethered only to a judge’s personal policy preferences.
After all, does ruling for the “little guy” mean that a judge should rule for the African-American students admitted under an affirmative action program, or for the poor white kids denied admission as a result?
Similarly, does it mean that a judge should favor the rights of criminal defendants and women seeking abortions or, instead, the rights of crime victims and unborn babies? Because there is no principled way to decide, the judge is free to indulge his personal preferences.
The “little guy” line of attack against Gorsuch’s record is not just intellectually vacuous, but also hypocritical in light of Senate Democrats’ repeated attempts to get him to critique President Donald Trump’s comments about federal judges.
Sen. Ted Cruz, R-Texas, on Wednesday said, “It’s a little rich for [Democrats] to be maligning a sitting federal judge [about his record] and at the same time giving speeches about how unacceptable it is for anyone to criticize a federal judge.”
Bringing up the president’s comments was just one of the ways in which committee Democrats continued to wield the Trump hammer against Gorsuch.
Referencing a remark made by Trump adviser Stephen Miller after a court struck down the president’s immigration order, Sen. Pat Leahy, D-Vt., asked Gorsuch if a president has to comply with a court order.
With the touch of wit that has characterized Gorsuch’s testimony this week, he replied, “I’m a judge now, and I take that seriously. And you better believe I expect judicial decrees to be obeyed.”
Gorsuch did not address the constitutionality of the immigration order. But with his confirmation as a Supreme Court justice all but assured now, he probably won’t be able to avoid that issue for much longer.