The Gorsuch Resistance

3/19/17
from The Wall Street Journal,
3/19/17:

Democrats haven’t come up with a single good reason to oppose him.

The Senate begins confirmation hearings for Neil Gorsuch Monday, and the image to keep in mind is professional wrestling. Democrats have dug up so little on the supremely qualified Supreme Court nominee that they’ll be huffing and puffing and pretending to body slam the judge around the hearing room. It’s mostly political theater. Progressives frustrated at the judge’s stellar record are pressuring Senate Minority Leader Chuck Schumer to turn the hearings into the next show of political resistance to President Trump. In a recent letter to Democratic Senators, groups including abortion activists, MoveOn.org and the Service Employees International Union called Judge Gorsuch an “unacceptable nominee” and demanded the nomination meet a 60-vote threshold. “Democrats have failed to demonstrate a strong, unified resistance to this nominee despite the fact that he is an ultra-conservative jurist who will undermine our basic freedoms and threaten the independence of the federal judiciary,” the groups wrote. By “basic freedoms” they must not mean free speech, religious liberty or gun rights that Judge Gorsuch has upheld.

Mr. Schumer has responded by posing with flexed muscles, but he makes a lousy CM Punk. Mr. Gorsuch “may act like a neutral, calm judge” and “he expresses a lot of empathy and sympathy for the less powerful,” the Democratic leader said last week, but in reality the judge “harbors a right-wing, pro-corporate, special-interest agenda.” The claim is that Judge Gorsuch has sometimes ruled in favor of big companies. So what? Judges are supposed to look at the facts and law, not which side is bigger or richer. Democrats cite Hwang v. Kansas Stat e, in which Judge Gorsuch ruled that when a school declined to extend the length of a six-month leave of absence to a teacher who had cancer, the decision did not qualify her for a discrimination claim under the Rehabilitation Act. They also make much of Thompson R2-J School District v. Luke P., in which the court ruled against parents seeking reimbursement for the cost of a private program after they took their autistic son out of public school. But these were correct rulings based on statute and precedent, and they were unanimous rulings joined by liberal judges. Mr. Schumer says that in employment-discrimination cases Mr. Gorsuch “sided with employers 60% of the time.” But judging isn’t a statistical exercise in which perfect impartiality is defined by a 50-50 divide between employers and employed. Among Judge Gorsuch’s 171 labor and employment cases, 89% were unanimous decisions.

Democrats want to ignore cases when Judge Gorsuch ruled against corporations and business interests. In 2015 in Cook v. Rockwell, the judge ruled in favor of allowing a decades-long class action over whether the Rocky Flats nuclear-weapons plant had contaminated land with leaked plutonium. In E nergy and Environment Legal Institute v. Epel, Judge Gorsuch ruled to uphold the constitutionality of Colorado’s renewable-energy mandate.

If this is all they’ve come up with, Democrats might as well start counting the votes. Judge Gorsuch has been praised by President Obama’s former Solicitor General Neal Katyal, and the judge’s record of skepticism toward executive power is exactly what Democrats might hope for in a Donald Trump appointee. He also has a libertarian streak on criminal law. None of this will matter to most Democrats, who will bow to their base and oppose the judge. Jeff Merkley (D., Ore.) has already called for a filibuster to block the nominee even if he has more than 50 votes. Republicans would then have to follow Harry Reid’s precedent from 2013 and break the filibuster. Republicans—Ted Cruz and Mr. Trump excepted—have behaved well in saying they would prefer not to have to take that step. But if Democrats are so afraid of the left that they oppose even a mainstream and distinguished nominee like Judge Gorsuch, the GOP will have to do so for the good of the judiciary and the country.

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