Opinion | Eric Fehrnstrom

In bid to block Gorsuch, Warren and Democrats overplay their hand

Neil Gorsuch testifies before the Senate Judiciary Committee on March 22, 2017. / AFP PHOTO / Mandel Ngan (Photo credit should read MANDEL NGAN/AFP/Getty Images)

Mandel Ngan/AFP/Getty Images

Supreme Court nominee Neil Gorsuch testifies before the Senate Judiciary Committee on March 22.

Now that Democrats have scored a victory by defeating President Donald Trump’s plan to repeal and replace Obamacare, they smell blood in the water. But in pledging to block Supreme Court nominee Neil Gorsuch, they may be overplaying their hand and inviting bigger problems down the road.

The resistance to Gorsuch is based not on the nominee’s background, qualifications, or courtroom experience. Those are impeccable. He breezed through his confirmation hearings without any gaffes or slipups. No, the Democratic opposition is fanned by the suspicion that Gorsuch will somehow put the law ahead of his personal feelings.


This bizarre attitude was summed up by Democratic Senator Kamala Harris of California, who said: “Judge Gorsuch has consistently valued narrow legalisms over real lives.” In other words, a good judge should base his rulings on outcomes and not on the law itself.

Here in Massachusetts, Senator Elizabeth Warren accused Gorsuch of favoring the interests of big corporations over workers and consumers, as if what matters is the identity of the plaintiffs and defendants and not the legal reasoning behind Gorsuch’s opinions.

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Warren’s opposition is particularly rich considering her own history, actually advocating for the corporations she claims to oppose.

During the time she spent as a
private attorney, Warren was hired by LTV Steel, in the 1990s, to assist the company, then emerging from bankruptcy, in arguing that it did not have to pay into its retirees’ health care fund. She also represented Travelers Insurance in 2009 in a bid to help one of the nation’s largest insurers gain immunity from asbestos-related lawsuits. Travelers won most of what it wanted. Needless to say, the results have been disastrous for asbestos victims.

Why is it that Warren gets a pass on her hypocrisy as she attacks the reputation of her opponents? If Warren engages in the same behaviors that she pretends to find in others, she should at least be reminded of her dishonesty.


And what is the evidence that Gorsuch is pro-corporate? Compared to Warren, Gorsuch is a slacker. The most oft-cited case is his dissent while on the 10th Circuit Court of Appeals in a decision in which a company was ordered to rehire a trucker fired for abandoning his load. Gorsuch said the company’s response may have been unkind, but it was not illegal.

At the confirmation hearings, Gorsuch addressed the law’s demands, and how what we might desire in terms of an outcome is not always possible. “Sometimes,” he said, “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 believes the law requires. And for all its imperfections, I believe that the rule of law in this nation truly is a wonder.”

One of Barack Obama’s legacies as president is the “empathy rule” in judicial selection. Before nominating Sonia Sotomayor to the nation’s highest bench, in 2009, Obama said an important consideration was “that quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.”

Democrats have now turned that criterion into a weak excuse for filibustering Gorsuch’s nomination.

This is a dead end for Democrats. Refusing Gorsuch a straight up-or-down vote will force majority leader Mitch McConnell to do away with Senate rules that require 60 votes to break a filibuster. That means Trump can choose as his next Supreme Court nominee someone far more contentious and less empathetic than Gorsuch, and Democrats will have no one to blame but themselves.

Eric Fehrnstrom is a Republican political analyst and media strategist, and was a senior adviser to Governor Mitt Romney.
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