Liberals have at their disposal three kinds of arguments against confirming Judge Neil Gorsuch to the Supreme Court.
They can say that the mainstream judicial conservatism that he undoubtedly represents is dangerously wrong. A lot of liberals probably believe this. But most people find that argument unreasonable, so few liberals make it.
They can say that Gorsuch should not be confirmed to keep Republicans from being rewarded for their refusal even to consider President Barack Obama’s nomination of Judge Merrick Garland for the same seat on the Supreme Court. But voters didn’t much care about Garland’s plight last year, when his nomination was live, and are unlikely to care more about it now.
This leaves door number three: Liberals can pretend that Gorsuch is a far-right extremist. Many liberals are rushing right in.
“Unfortunately, Judge Gorsuch has proven to have a judicial philosophy outside of the mainstream and time and again has subjugated individual rights to those of corporations,” says Sen. Kirsten Gillibrand of New York.
She cites Gorsuch’s ruling that the Hobby Lobby craft-store chain should be able to refuse to offer employee health coverage for contraceptives that its evangelical Christian owners oppose. Senator Sherrod Brown of Ohio also claims that Gorsuch proved he was “far outside of the judicial mainstream” in treating corporations as people.
Yet only two of the nine justices on the Supreme Court sided with these senators in denying that corporations could qualify for protection under religious-liberty statutes. Justices Stephen Breyer and Elena Kagan, both Democratic appointees, voted against Hobby Lobby, but refused to endorse that argument. So who’s really out of the mainstream?
Sen. Ron Wyden tweets that “Gorsuch represents a breathtaking retreat from the notion that Americans have fundamental Constitutional rights” and “harkens back to the days when politicians restricted a people’s rights on a whim.” You can read this in one of two ways. Perhaps the Oregon Democrat is saying Gorsuch does not believe that the Constitution protects any fundamental rights. But there is no evidence at all that Gorsuch takes that absurd view and abundant evidence against it.
Or maybe Wyden is saying he believes the Constitution protects some specific fundamental rights that Gorsuch does not see in the document. Gorsuch does not, for example, believe that the Constitution protects a right to assisted suicide. (The Supreme Court has never held that it does.) Perhaps Wyden disagrees. But if Wyden means only that Gorsuch would rule differently than Wyden would like, he is using deliberately hyperbolic language to describe a banal disagreement.
Nan Aron, the head of an influential liberal organization called the Alliance for Justice, sent out an email after Gorsuch’s nomination saying: “He is critical of laws that ensure workers’ rights and safety, guarantee equal opportunity, safeguard consumers and investors, ensure the safety of food and drugs, and protect our environment.”
No, he isn’t. He has, however, said that when federal agencies issue regulations for those and other purposes, courts should make sure those regulations are authorized in laws passed by Congress. Aron would have you believe that enforcing a law is the same thing as undermining it.
Aron also said, “Gorsuch protects police officers who use excessive force.” What Gorsuch actually did was cite a unanimous Supreme Court decision that protects police officers unless they are plainly incompetent or knowingly break the law.
Nancy Pelosi, the House Democratic leader, says, “What saddens me the most as a mom and a grandmother, though, is his hostility towards children in school, children with autism.” She claims that Gorsuch ruled that the Individuals With Disabilities Education Act “doesn’t apply to them.”
Pelosi will be much happier when she realizes Gorsuch never ruled that way. He did rule that the law did not entitle the parents of a child with autism to the specific assistance they sought. It was a unanimous decision of three judges, including one appointed by Clinton, and it expressed sympathy for the family.
I don’t mean to paint all liberals with the same brush. Some of them are noting that he is exactly the reasonable and judicious pick he appears to be. Others are working hard to distort his record — and in the process discrediting only themselves.
Ramesh Ponnuru is a senior editor of National Review.