This essay is divided into five parts. The first part describes the Democratic Party’s vision for the American judiciary, using the language of the Democratic members of Senate Judiciary Committee during the 2017 confirmation hearings of Judge Neil M. Gorsuch as Supreme Court justice. The second part describes how the Democratic Party’s vision has played out in judicial systems in other countries. Next, I wanted to counter the Democratic Party’s vision. I could have relied on academics, or Republicans, but my obvious choice was to quote nominee Judge Gorsuch himself in the same time and place.
I utilize extensive quotations because the media at the time provided, of course, only snippets, and few readers likely listened live during most people’s working hours the confirmation hearings. While the videotape is publicly available online, viewing it for hours is not an efficient use of time. Because of the extent of the Judge’s quotations, I have split it up into two parts (Parts 3 and 4). Part 5 describes Judge Gorsuch’s work to make huge reforms in the law in favor of the “little guy,” efforts ignored by the Democrats.
(On February 16, after the nomination but before the confirmation hearings began, I wrote an essay about a paper published by the Washington Legal Foundation in 2005 by then private attorney Gorsuch (and Paul B. Matey, who was nominated in April 2018 for the Third Circuit), The folks who tried in 2017 to use his 2005 paper against him hadn’t done their homework. Gorsuch’s views had been adopted unanimously by the U.S. Supreme Court.)
I will provide you evidence but let me give you my conclusions now. The Democrats tell the public that all they want from a federal judge is empathy for groups of people whom the Democrats regard as disadvantaged “little guys.” But they don’t want empathy; they want results. First, they want federal judges who will determine, forecast, what the consequences of their decisions will be for the “little guy” and then vote and write in their favor. There can only be one true “justice” between the parties, namely, that the little guy prevails.
Second, where there are applicable Supreme Court precedents in a case, the Democrats want a federal judge who will overturn those the Democrats disfavor and uphold the precedents the Democrats do favor. Their vision of the judiciary is inimical to the U.S. Constitution. Their continual rant about the Court’s supposed bias against the “little guy” encourages the public to disrespect the Court, its decisions, and the law. The Democrats undermine the judicial branch of government, undermining America.
The Democratic Party’s Vision for the American Judiciary
The Senate Judiciary Committee conducted a four-day hearing in 2017 on whether the Senate should confirm the nomination of Judge Neil Gorsuch, of the U.S. Court of Appeals for the Tenth Circuit, for the U.S. Supreme Court: March 20 (opening statements), March 21 and 22 (question-and-answer of the nominee by the Senators), and March 23 (testimony by other witnesses). The Committee voted, after individual Senators explained their vote, 11-9 on April 3 on a straight party vote. (The full Senate voted 54-45 on April 7 in favor of the nomination.)
Here are brief biographies of the nine Democrats so we can see at a glance the extent to which it would seem that they, certainly more than most American citizens, have been steeped in American law, government, and the Constitution. Seven of the nine attended law school. (Senators Feinstein and Franken did not.)
• Dianne Feinstein, California, Ranking Member: majored in history at Stanford; mayor of San Francisco; member of the Committee since she was first elected to the Senate in 1993.
• Patrick Leahy, Vermont, a former Chair of the Committee (2001-2003, 2007-2015): majored in political science at St. Michael’s College; law degree from Georgetown; State’s Attorney of Chittenden County.
• Dick Durbin, Illinois: majored in foreign service at Georgetown; law degree from Georgetown.
• Sheldon Whitehouse, Rhode Island: majored in architecture at Yale; law degree from the University of Virginia; Assistant Attorney General, Rhode Island; U.S. Attorney for District of Rhode Island; Attorney General of Rhode Island.
• Amy Klobuchar, Minnesota: majored in political science at Yale; law degree from the University of Chicago; County Attorney for Hennepin County.
• Al Franken, Minnesota: majored in political science at Harvard.
• Chris Coons, Delaware: majored in political science at Amherst; law degree from Yale.
• Richard Blumenthal, Connecticut: majored in government at Harvard; law degree from Yale; law clerk to U.S. Supreme Court Justice Blackmun; Attorney General of Connecticut (five terms); U.S. Attorney for the District of Connecticut.
• Mazie Hirono, Hawaii: majored in psychology at University of Hawaii; law degree from Georgetown; governor of Hawaii.
I provide below quotations from the Democratic Senators’ public comments at the hearing (not statements to the press). I confine these to general statements, not including those in which the Senators focused on specific opinions written by Judge Gorsuch. Whether these statements by the Democratic Senators are what they sincerely believe or are merely posturing for the public, they remain their vision for the American judiciary.
I’ve listed the Senators in their order of seniority on the Committee -- which is the same order in which they address witnesses. I have not quoted Senator Coons because I did not find any statement of his that I thought aligned with the others on these general statements. (He did, however, have, with the other Democratic Senators, issues with the nominee on specific Supreme Court precedents.)
March 20: Our job is to assess how this nominee’s decisions will impact the American people and whether he will protect the legal and constitutional rights of all Americans—not just the wealthy and the powerful…We hold these hearings because the United States Supreme Court has the final word on hundreds of issues that impact our daily lives…whether a woman will continue to have control over her own body…make it harder for poor people, people of color, seniors and younger people to vote…[whether] corporations will be able to pollute…the NRA and other extreme organizations will be able to block commonsense gun regulations…employers will be held accountable for discriminating against workers or failing to protect workers when they’re harmed or killed on the job.
March 21: How do we have confidence in you that you won’t just be for the big corporations, that you will be for the little men? This is the question that Senator Hirono I think so well asked yesterday [quoted below]. You know, those of us I think on both sides [of the aisle, Democrat and Republican] care very much about workers’ rights, but the record is such that one questions whether the Court is capable in its present composition to give a worker a fair shot. So, I’m just looking for something that would indicate that you would give a worker a fair shot. Maybe it’s in your background somewhere that I don’t know about…
April 3: [I can’t rely on him to protect the rights of all Americans.]
March 20: …the Court has a profound impact on small businesses and workers, law enforcement and victims, and families and children across America. It is not contrary to the duties and obligations of a Supreme Court Justice to consider the effects of their rulings.
… If confirmed, you must be a Justice for all Americans, not for the special interests of a few…
March 20: When I talk about expanding freedom, I don’t mean freedom for corporations. “We the people” does not include corporations… In case after case, you have dismissed or rejected efforts by workers and families to recognize their fights or defend their freedoms in court against businesses… You invoke the supposedly neutral philosophies of “originalism” and “textualism.” But somehow time after time these doctrines lead you to the same outcome – the company wins and the worker, the victim, and the consumer lose to the corporation elite… Lawyers have a responsibility to faithfully represent their clients, but a Justice of the Supreme Court has a greater responsibility to the Constitution, the law, and the values of our nation.
March 22: We have to look at your words and try to look into your heart with these words… You’ve told us time and again, “No place for my heart here. This is all about the facts; this is all about the law.” I don’t buy that. I don’t think that the decisions of courts are so robotic, so programmatic, that all you need to do is to look at the facts and look at the law and there’s an obvious conclusion. If that were the case, there’d never be a dissent.
April 3: [In case after case while on the Tenth Circuit, Judge Gorsuch] was a favorite of corporations and employers and special interest elite…over workers, consumers, people with disabilities and victims of discrimination.
March 20: [After Sen. Whitehouse cited a number of 5-4 decisions that he argued were all partisan and biased for corporations and after he referred to the “Republican politico-industrial complex.”:] A 2014 poll revealed that a majority of Americans think a person won’t get a fair shake in this Court against a corporation… I hope we can at least agree that we can’t have a Court where litigants in these 5-4 decisions can predict how they’ll do based on who they are.
March 22: The majority of Americans looking at the Supreme Court think they won’t get a fair shake there against a corporation. In fact, 36% -- more than a third – think that the Court will be much more favorable to a corporation than to a person.
April 3: Conservative appointees consistently deliver for the Republican Party and big business. [Supreme Court decisions] helped insulate investment bankers from fraud claims…They protect employers at the expense of employees bringing discrimination cases …Three pro-corporate political spending cases: Corporations [3 ]vs. Humans (0)…[A vote to confirm Judge Gorsuch will create] a new right-wing gang of five…and go on another corporate shopping spree…By a margin of 9 to 1, Americans think a regular person won’t get a fair shake in the Supreme Court…This nominee’s candidacy was born on a list prepared by right-wing, pro-corporate groups…
March 20: I want to know, if you are confirmed, whether your judgments and decisions would in fact reflect a respect for precedent and the law and how they would affect all Americans [referencing a grandmother and a grocery store worker].
April 3: For me, his record on critical cases involving the rights of children with disabilities, campaign finance, and preserving health and safety protections have led me to conclude I can’t not support the nomination.
March 20: It is incumbent upon us to determine whether the views you espouse, and whether your interpretation of the Constitution, take proper measure of the challenges the American people face every day, [whether they] will unfairly favor corporate interests over working families or limit the ability of Minnesotans to get their day in court.
April 3: This is about confirming a nominee who would guarantee 40 years, 40 more years, of 5-4 decisions favoring corporations over workers and consumers, preventing Americans from getting access to the courts...
April 3: Pro-life, pro-gun, conservative . . . I gave Judge Gorsuch…an opportunity to distance himself from these right-wing groups…[He is] an acolyte of the hard right special interests…[Regarding Supreme Court precedents:] He has left us with substantial doubt [as to whether he’d adhere to them]. That doubt leads women wondering how long they will have autonomy over their health care decisions, same-sex couples questioning whether they might be denied the right to marry the person they love, workers and consumers doubting their rights, and Americans fearing the [Supreme] Court will abandon protection of privacy and equal protection under the law…
March 20: Whenever a case comes before a judge it invariably involves real people—people who are often there because they have experienced the worst day of their lives -- whether they are victims of a crime, suffered a serious injury due to corporate malfeasance, or because they have lost their livelihood due to discriminatory behavior from their employer…I have not seen that the rights of minorities are a priority for you. In fact, a pattern jumps out at me, you rarely seem to find in favor of the “little guy.” … In our courtesy meeting, you said you have a heart. So, Judge Gorsuch, we need to know what’s in your heart…We need to understand how you will grapple with a number of important questions the Court will be asked to consider in the years ahead:
--Will the Court protect the rights of working people and our middle class or side with corporations…
--Will the Court uphold…Roe v Wade?
--Will the Court…allow corporations and the ultra-rich to hijack our democracy with dark money?
--Will the Court…allow states to use voter fraud as an excuse to disenfranchise vulnerable communities?
--Will the Court…gut decades of environmental regulations?
--Will the Court protect access to our justice system or slam the courthouse doors to all but the wealthiest among us…
[This Committee is] considering [whether you will affirm] our country’s values.
March 22: It remains to be seen if you will be a Justice for all or a Justice for some.
April 3: The working families, women, people of color, the LGBT community, immigrants, students, seniors, native peoples—these are the people who will be impacted by the decision a Justice Gorsuch would make…[Judge Gorsuch has] a pattern of being on the side of corporations and against the side of individuals…
Stay tuned for parts 2 through 5.
Spero News contributor James M. Thunder is an attorney with Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C., Washington, D.C. (Supreme Court Justice Gorsuch practiced with the firm 1995-2005.) Thunder has authored over 200 items including several law review articles. He was the editor of the seven-volume U.S. DEPARTMENT OF JUSTICE MANUAL (1977), the co-author of FEDERAL CHEMICAL REGULATION (BNA 1997), and a major contributor to K. Chris Todd, ed., 225 YEARS (1789-2014): THE UNITED STATES ATTORNEYS FOR THE SOUTHERN DISTRICT OF NEW YORK (2014).