Democrats face a tough battle on Gorsuch
Revealing a scary judicial wolf under Mr. Nice Guy robes won’t be easy.
In nominating Judge Neil Gorsuch to the Supreme Court, President Trump did what a reality TV master does best. He picked someone who looks the part he wants to sell — in this case, that of a conservative but reasonable jurist, with impeccable credentials. At the same time, Trump also promised that “evangelicals, Christians, will love my pick.”
If Democrats want to keep Gorsuch off the court — a tough challenge, given Republican control of the Senate — they have to show where all that evangelical love comes from and how it could hurt the rest of the country.
During a CNN town hall that followed Trump’s Supreme Court announcement Tuesday night, House minority leader Nancy Pelosi put her finger on the problem. Calling Gorsuch “a very hostile appointment,” she added, “hail fellow, well met — lovely family, I’m sure.”
Gorsuch looks at the law like the late Justice Antonin Scalia, but his personality is said to be less acerbic and more collegial. A Scotusblog profile by Andrew Hamm describes the 49-year-old Colorado native as “available, open, and sociable.” He’s also an avid fly fisher who skis and raises horses, chickens, and goats.
What’s not to like? His devotion — mirroring that of Scalia’s — to “originalism,” which means interpreting the meaning of the Constitution at the time it was written. That makes it a document frozen in the era of muskets and privileged white men.
Crux Now, an online Catholic publication, joyfully notes that Gorsuch has called the “overweening addiction” of liberals for using the courts to litigate issues like gay marriage and assisted suicide “bad for the nation and for the judiciary.”
Viewed as a religious liberties advocate, Gorsuch sided in favor of Christian employers and religious organizations who challenged contraception mandates that are part of the Affordable Care Act.
He has not ruled directly on abortion. But in his 2006 book, “The Future of Assisted Suicide and Euthanasia,” he argued in favor of laws that ban both, “based on the idea that all human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong.”
These are all issues that should be explored during a full, probing confirmation process — no matter how impressive Gorsuch’s credentials or how measured his demeanor.
Nancy Gertner, a retired federal judge and Harvard Law School professor, said she fears Gorsuch will get the same treatment that Chief Justice John Roberts got during his confirmation hearings. She said his “ostensible nice demeanor caused the Democrats to pull their punches.”
With Gorsuch, said Gertner, Democrats “need to stand up and do a searching confirmation process’’ — not just oppose, as Republicans did when they refused to hold hearings for Judge Merrick Garland, President Obama’s nominee for the seat.
Bitter over what happened to Garland, Democrats are pledging to filibuster the Gorsuch nomination to prevent a vote. Under the current rules, it would take 60 votes to break the filibuster. Republicans have 52, so they would need votes from some Democrats.
After a tumultuous start, the expectations bar for Trump is so low that the Gorsuch pick looks especially good.
“He is a much, much better nominee than I would ever have expected from Trump,” said Harvey Silverglate, a prominent civil liberties lawyer. “He is a real judge, not a goon in black robes. . . . When you consider what Trump might have put onto the high court, given his majority in the Senate, Gorsuch is a very pleasant surprise.”
That’s a problem for Democrats.