Neil Gorsuch’s confirmation hearings begin today, and the Democrat case against him is laid out in a POLITICO piece titled 5 pieces of Gorsuch’s record that Democrats will attack (cached link; no links for bullies). It’s an attack that not only falls flat, but increases my admiration for the judge.
Complaint #1 is that he ruled in favor of religious freedom. That’s a non-starter as an attack. He’d have a problem if he ruled against it. Next?
Complaint #2 is that, while a lawyer at the Bush Justice Department, he supported the Bush administration’s priorities. Um, that’s what lawyers do. Next?
Complaint #3 is that Judge Gorsuch told people he found it “disheartening” and “demoralizing” to see President Trump attack the judiciary over his executive order on immigration. I couldn’t be more pleased about this. Democrats are indeed going to make much of this. They’re going to quote his comments and force him to own those comments publicly, in front of the cameras. I believe he’ll find a way to do that in a forthright manner that sounds reasonable. But in any event, he’ right. Next?
Complaint #4 is supposedly about “worker’s rights” but in reality is the sort of nonsense Democrats always engage in. Judge Gorsuch ruled properly in a couple of cases with sympathetic plaintiffs. To Democrats, if someone is sympathetic, it shouldn’t matter what the law says; you just make sure you rule for them because of the feelz. For example:
Senate Minority Leader Chuck Schumer held a news conference last week with people that the New York Democrat said had been victimized by Gorsuch’s legal decisions. Among his guests: the Hwang children, whose mother sued Kansas State University because she was denied an extension of her six-month leave of absence caused by her cancer diagnosis. Gorsuch sided against Hwang, who died last year.
Stunts like Schumer’s are designed to make judges seem heartless — almost as if Judge Gorsuch had killed Ms. Hwang with his own bare hands. But, to their credit, POLITICO at least provides a key line from Judge Gorsuch’s opinion that explains why he ruled this way:
Ms. Hwang’s is a terrible problem, one in no way of her own making, but it’s a problem other forms of social security aim to address. The Rehabilitation Act seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work — not to turn employers into safety net providers for those who cannot work.
Ms. Hwang could not work, and the ability to work is a requirement for an employee to be eligible for relief. The opinion was uncontroversial. It was also unanimous, and was joined by Judge Carlos Lucero, a Bill Clinton appointee, as well as Bush appointee Judge Harris Hartz. But Ms. Hwang and her family were sympathetic, and so let’s make Judge Gorsuch the bad guy. Fail. Next?
Complaint #5 is that “Gorsuch has shown deep skepticism toward the so-called Chevron deference, a longstanding doctrine that calls on judges to defer to how federal agencies interpret key laws.” This is perhaps my favorite aspect of the Gorsuch nomination: the way it threatens to help destabilize the overweening power of federal bureaucracy. I wrote about this extensively here, and will quote the heart of my post:
[A]bsurd regulations, completely untethered from common sense, have become ubiquitous in the lives of American businessmen. Fighting these regulations is well-nigh impossible because the bureaucracy serves as lawmaker, enforcer, and even judge. Your challenge to a stupid regulation must first be adjudicated by an administrative law judge who is an arm of the same agency that wrote and enforced the ridiculous regulation. But to make matters worse, when you then go to court, judges apply something called the “Chevron doctrine,” in which they almost always defer to the agency’s decision, as long as it is “reasonable.” . . . It’s a dangerous doctrine that makes judicial review toothless. It’s not what the Founders had in mind when they set up our system.
Gorsuch opposes this doctrine, and three cheers for him.
They’ve got nothing. Judge Gorsuch will be confirmed — and his tenure will be a home run for the American people.