March 21, 2017
More than a decade ago, Neil Gorsuch had an interesting way of describing judicial confirmation hearings. "They're just another avenue of political warfare," he wrote. And today, he's finding out just how true those words are. In the second day of his own hearing -- which would have seemed like a distant dream when he penned those words 12 years ago -- he's putting his theory to the test with Democrats who are having trouble finding anything wrong with the Supreme Court nominee.
For two days, Gorsuch has done the president proud, handling every question with grace and thoughtfulness. More importantly, the 10th Circuit judge is putting the judicial spotlight where it belongs: not on his own ideology, but the law. With a humility foreign to many judges, he used his opening statement as an opportunity to explain what sets him apart from so many in his profession.
"These days, we sometimes hear judges cynically described as politicians in robes, seeking to enforce their own politics rather than striving to apply the law impartially. If I thought that were true, I'd hang up the robe. The truth is, I just don't believe that's what a life in the law is about... As a judge now for more than a decade I've watched my colleagues spend long days worrying over cases. Sometimes the answers we reach aren't the ones we personally prefer. Sometimes the answers follow us home at night and keep us up. 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."
While others claim to practice restraint, Gorsuch's record proves it. The 49-year-old has spent his career in deference to the law and the democratic process. "I don't think it's an accident the framers put Article I first," he told Senate Judiciary Chairman Chuck Grassley (R-Iowa). "You make the law. The president's job was to faithfully execute your laws. And our job, Article III, down at the bottom, is to make sure that the cases and controversies of the people are fairly decided. And if those roles were confused, and power amalgamated, judges would make pretty rotten legislators. We're life tenured, right? You can't get rid of us. It only takes a couple of us to make a decision, or nine, or 12, depending on the court. It would be a pretty poor way to run a democracy."
For so many Americans, who have watched as a handful of justices redefine thousands of years of tradition and natural law, listening to Gorsuch was like a breath of fresh air. Unlike so many judicial activists today, he understands his role. In a world where issues like same-sex marriage and abortion were suddenly discovered in the invisible ink of the Constitution, Gorsuch offered hope that he would not declare what he would "like the [law] to be" but "what it is." Everyone, he insisted, "wants a fair judge." "I have no difficulty ruling for or against any party, based on what the laws and facts in the particular case require. And I'm heartened by the support I have received from people who recognize that there's no such thing as a Republican judge or Democratic judge. We just have judges in this country."
That should have satisfied the room's liberals. But as usual, they had their own agenda -- and finding a judge who understands the boundaries of the judiciary wasn't it. Senator Dianne Feinstein (D-Calif.) lobbed plenty of darts at Gorsuch, starting with Roe v. Wade and the president's promise to appoint a pro-life justice. If he placed so much value in precedent, she pressed, wouldn't that also apply to legalized abortion? "Do you view Roe as having super precedent," she asked? "It has been reaffirmed many times," he replied. "I can say that." Senate Minority Leader Chuck Schumer (D-N.Y.) took the chamber on a bizarre rant about healthcare during his opening statement, which included its share of swipes at Trump's pick -- and then claimed Gorsuch was neither "neutral" nor "judicious," despite bipartisan support to the contrary. Others like Senator Patrick Leahy (D-N.H.) at least had the semblance of legitimate questions. On questions like religious liberty, Gorsuch was solid. "Senator," he said to Leahy at once point,
"We have not just the First Amendment free exercise clause in this country, a very important protection. We have not just the equal protection guarantee of the 14th amendment which prohibits discrimination on the basis of race, gender, ethnicity, we also have the Religious Freedom Restoration Act Senator Hatch mentioned, which was a bipartisan bill passed by this body with the support of Senator Kennedy and Senator Schumer when he was in the house. And that imposes an even higher standard on the government than the First Amendment when it comes to religious discrimination. It says that there if there's any sincerely held religious belief -- earnestly held religious belief -- the government must meet strict scrutiny before it may regulate on that basis. Strict scrutiny being the highest standard known in American law."
There's a reason -- many, in fact -- why conservative groups like FRC are lining up behind Neil Gorsuch's nomination. He is, as leaders in our coalition wrote in a letter to the Senate, "a defender of the most basic human rights." He has, as he's proven this week, a "keen understand and respect for religious liberty in cases involving Hobby Lobby and the Little Sisters of the Poor." He argues in his own book that "human life is fundamentally and inherently valuable." All the evidence suggests that President Trump did, in fact, select a nominee in the mold of Justice Antonin Scalia.
Tony Perkins' Washington Update is written with the aid of FRC senior writers.