The New York Times reports that Senate Democrats have decided how they will attack Donald Trump’s nomination of Judge Neil Gorsuch to the Supreme Court: he sides with the big interests against the little guy. If this sounds familiar, it’s because it is the much the same thing Senate Democrats said about George W. Bush’s nominations to the Supreme Court.1
When it comes to Judge Gorsuch, according to Senator Patty Murray of Washington:
“You can find example after example of Judge Gorsuch siding against workers even in the most dire circumstances.”
Senate Minority Leader Chuck Schumer says this:
“There’s a whole pattern. He sort of expresses sympathetic words in many of these cases, but then his decision is coldly – he would say pragmatic, we would say coldly – on the side of the big interests.”
Two comments. First, I thought the role of courts was to apply the law to the facts of the case. If the law said one thing, they would rule in favor of that side. If the law said something else, they would rule for the other side. I didn’t realize that courts were supposed to figure out who the most appealing side was, or who the “little guy” was, and then rule for them regardless of the law. Though that is the impression you get from Senator Schumer’s and Senator Murray’s comments.
Second, what neither Senator Schumer nor Senator Murray says, or at least the Times doesn’t mention, is what they did in response to these rulings by Judge Gorsuch. If Judge Gorsuch said the law required him to rule in one way or the other, a way that Senator Schumer thinks was “on the side of the big interests,” what bills did Senator Schumer or Senator Murray propose to change the law? If the laws were worded in a way that required – or allowed – Judge Gorsuch to rule against the little guys, how did these senators suggest changing the laws? Because if you don’t like the way a court interprets the law, change the law. That’s the way the system works.
Opponents of Judge Gorsuch also say that he has not been sufficiently public or open about his independence from Donald Trump, the man who nominated him. Apparently, calling President Trump’s attacks on the judiciary “disheartening” in meeting with Democratic senators isn’t enough. Maybe they are looking for more of the “if-Trump-wins-it's-time-to-move-to-New-Zealand” approach of Supreme Court Justice Ruth Bader Ginsburg.2
Finally, we have Senator Dick Durbin complaining that Democratic senators shouldn’t be expected to extend “courtesies” to Judge Gorsuch when Senate Republicans wouldn’t consider President Obama’s nomination of Judge Merrick Garland last year. Of course, I’m not sure even Senator Durbin can claim that the Democrats wouldn’t have done the same thing if the situation was reversed – at least without his nose growing an extra foot.
1 For example, here is how then-Senator Barack Obama explained his vote against President Bush’s nomination of Samuel Alito in 2006:
“[W]hen you look at his [Judge Alito’s] record, what is clear is that when it comes to his understanding of the Constitution, he consistently sides on behalf of the powerful against the powerless. If there is a case involving an employer and an employee, and the Supreme Court has not given clear direction, Judge Alito will rule in favor of the employer.”
2 She hasn’t moved yet.