A Worst Casey Scenario on Gorsuch

A Worst Casey Scenario on Gorsuch

March 23, 2017

If you thought your job interview was tough, try being Neil Gorsuch. The president's Supreme Court pick has spent three grueling days under the microscope of nitpicking Democrats who seem more interested in finding a super-legislator than a replacement for Antonin Scalia. Today, after hours of grilling, the 49-year-old finally got a breather from the hot seat, where liberals desperately tried to pin him down on political topics meant to draw out his personal opinions. He didn't take the bait.

"I've declined to offer any promises, hints, or previews of how I'd resolve any case," Gorsuch told them. "When I put on the robe," he explained on day one, "I am also reminded that under our Constitution, it is for this body, the people's representatives, to make new laws... And for neutral and independent judges to apply the law in the people's disputes. If judges were just secret legislators, declaring not what the law is but what they would like it to be, the very idea of a government by the people and for the people would be at risk."

For Gorsuch, the frustration with judicial activism runs deep. Twelve years ago, he blasted the Left for using the courts, not elected officials, to advance its "social agenda." More than a decade later, liberals like Rep. Nancy Pelosi (D-Calif.) are quite open about their cozy relationship with the courts, gushing that they never could have redefined marriage otherwise. Enter Gorsuch, who shows the kind of deference for the Constitution that his job calls for, and liberals come unglued. In announcing his opposition earlier today, Senator Bob Casey (D-Pa.) actually used Gorsuch's restraint as a reason to vote no! Amazingly, he points to "serious concerns about Judge Gorsuch's rigid judicial philosophy." That's exactly why the U.S. Senate should confirm him!

Senator Lindsey Graham (R-S.C.) can only shake his head in disgust. "What happened? Did the Constitution change? I don't think so. I think politics has changed. I think it's changed in a fashion that we should all be ashamed of as senators, and I think we're doing great damage to the judiciary by politicizing every judicial nomination." But, as several pundits point out, Casey's decision could have as much to do with his future as Gorsuch's. The Pennsylvanian is up for reelection next year in a state carried by Trump. "By opposing Judge Neil Gorsuch," warned the National Republican Senate Committee, "Bob Casey is aligning himself with the far Left instead of honoring the will of Pennsylvania voters. Pennsylvanians will remember Casey's betrayal when they head to the polls in 2018." In the meantime, rumors are swirling that Democrats are offering to scrap their filibuster plans if the GOP would promise not to kill the filibuster during a future SCOTUS nominee. Nice try, said Trump advisor Leonard Leo.

"Democrats must be delusional to think that Majority Leader McConnell or any of his Republican colleagues would reward Democrats for their awful treatment of Neil Gorsuch by agreeing to a 60-vote threshold for future Supreme Court nominations in exchange for a filibuster-free vote on Judge Gorsuch. One way or the other his confirmation is all but assured by now. This absurd 'deal' would prolong an environment in which Democrat Supreme Court nominees get up or down simple majority votes and Republican nominees get filibustered. That's not a deal, it's unilateral disarmament."

The only ones Democrats are negotiating with are themselves. Everyone recognizes that the real debate will be over Trump's second choice for the Court, since it has the potential to shift the bench's balance. Senate liberals must have gotten the message, since Minority Leader Chuck Schumer (D-N.Y.) went to the press before noon with his intent to obstruct. "He will have to have 60 votes for confirmation. My vote will be no, and I urge my colleagues to do the same." For Gorsuch to win his seat, Republicans will have to peel off eight Democrats -- a tall, but not impossible, task.

Until then, some conservatives are taking the time to dissect a few of the judge's statements. More than a few eyebrows were raised when Gorsuch answered a question about same-sex marriage by saying the two-year-old Obergefell ruling "is absolutely settled law." That caused more than a little heartburn in circles like ours who refuse to believe that moral issues like Roe v. Wade or Obergefell have been permanently decided by a handful of unelected judges. (Especially not when the polling shows that the Supreme Court's opinion isn't America's.)

But, as legal experts like Ed Whelan point out, there's no cause for panic. "It's clear, in the broader context, that Judge Gorsuch was saying of Obergefell the same thing he said of lots of other Supreme Court precedents: A justice starts off by presuming that a precedent is entitled to respect and then applies all the considerations that bear on whether that precedent should be overturned," Whelan said. "On this case as on others, Judge Gorsuch's response says nothing about those considerations." FRC's own Mandi Ancalle reminded the Christian Post that "Most of Tuesday morning, Judge Gorsuch spoke about the value of precedent. Certainly, precedent has significant value in the context of judicial interpretation. That said, precedent on a topic does not guarantee a same outcome on a similar case."

But the best reassurance probably came from the Left, where LGBT activists at The Huffington Post dismissed the answer as any sort of support for their cause. Michelangelo Signorile, the "queer voices editor-at-large," argued that the most "telling" portion of Gorsuch's statement on the topic was the part where he did point out that there's "ongoing litigation about [Obergefell's] impact and application." In the end, it's Gorsuch's judicial philosophy that matters most, especially in a highly politicized environment like this one. We continue to be optimistic that he'll interpret the Constitution -- not ignore it.

Tony Perkins' Washington Update is written with the aid of FRC senior writers.

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