Neil Gorsuch Goes To Washington
Corey Uhden, Politics Contributor
Perhaps nothing better encapsulates the politics of Judge Neil Gorsuch’s nomination to the Supreme Court than the presence of one person, Neal Katyal. Katyal, a Democrat who served as acting Solicitor General under President Barack Obama, helped conclude the first day of Neil Gorsuch’s confirmation hearing in the Senate Judiciary Committee by previewing the upcoming days. He introduced many of the themes that will be raised by a series of “minority witnesses” attempting to prove that Gorsuch doesn’t meet a general litmus test Democrats have routinely applied to judicial nominees. The situation is unique, however, because there has already been a nominee to this seat, Judge Merrick Garland, and Republicans refused to consider the nomination. Democrats are eager to return the favor. Even Katyal spoke to the “unprecedented, unwarranted” nature of this predicament, but unlike the Democratic activists to come, Katyal was actually making the opposite case: no one is better suited than Neil Gorsuch to be the next Associate Justice of the United States Supreme Court. That Katyal serves as the tip of the spear to the considerate, deliberate public campaign to confirm Neil Gosruch is a testament to Gorsuch’s independence and the weightiness of this nomination. Katyal’s presence serves as a rather stark reminder of how much this process differs from almost everything else consuming Washington at the moment.
When it comes to the Supreme Court, the White House is leaving nothing to chance, particularly the chance that political opinions will shift and Gorsuch’s nomination will become collateral damage in yet another partisan turf war. The Republicans are set: Neil Gorsuch is guaranteed 52 votes. This entire process hinges on convincing at least 8 Democrats to join them and resist the urge to filibuster the nomination. While reporters and pundits are quick to raise the prospect of Republicans invoking the “nuclear option,” using their power as the majority party to change Senate rules and exempt Supreme Court nominees from cloture requirements, Democrats have signaled their interest in examining the facets of the situation, from the “ignoble” treatment of Garland to Gorsuch’s life-long legal record and statements, both public and private.
Senator Dianne Feinstein, the ranking member of the committee, began the process with a fifteen-minute long opening statement assailing the wisdom of, in her own words, “the original public meaning of the Constitution.” She continued, “I find this originalist judicial philosophy to be really troubling.” Typically, politicians are a bit more cagey, but there for all the world is the chief conceit of the minority party; they aren’t comfortable with the Constitution they swore an oath to uphold. Feinstein’s sentiment was echoed by other members of the committee concerned that Gorsuch’s neutrality might prove an impediment to their progressive aims. Dick Durbin, the Senate’s minority whip, accused Gorsuch and the Republicans of trying to “capture our judicial branch of government.” In a few days time, this point will be fully fleshed out by the opposition into a dramatic rendering of grievances against applying the protections of the law to corporations, intelligence professionals, and other groups or people that might disagree with the Democrats from time to time.
The other unique facet of Gorsuch’s nomination concerns the president that nominated him. Donald Trump was elected with a spotty public record on everything from the first amendment to abortion and some of his remarks have raised concerns about his commitment to the independence of the judiciary. The Democrats used much of their time today to invoke Trump’s contempt of “so-called” judges and committed to asking Gorsuch if and when he will defy Trump.
No one can address some of those concerns better than Neil Gorsuch himself. While many earnest Republicans used their opening statements to wax poetic about the rule of law, impartiality, and the separation of powers at the core of our Constitution, Gorsuch emphasized his judicial philosophy in an honest, unassuming manner befitting his nomination to the nation’s highest court. As Gorsuch intoned, “sometimes the answers we reach aren't ones we would personally prefer. Sometimes the answers follow us home and keep us up at night. But the answers we reach are always the ones we believe the law requires.”
He spoke to his profession, promising “I have tried to treat all who come to court fairly and with respect.” It’s true. As Democrats pour through Judge Gorsuch’s opinions such as United States v. Carloss, they will find a true skeptic of government’s power and a true believer in minority rights. “I have decided cases for Native Americans seeking to protect tribal lands, for class actions like one that ensured compensation for victims of nuclear waste pollution by corporations in Colorado. I have ruled for disabled students, prisoners, and workers alleging civil rights violations.” Of course, he explained, “sometimes, I have ruled against such persons too. But my decisions have never reflected a judgment about the people before me — only my best judgment about the law and facts at issue in each particular case.”
If Neil Gorsuch is confirmed, he will take a different oath of office than the president or members of Congress. Instead, a Supreme Court Justice affirms, “I solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent under the Constitution and laws of the United States.” By every account, there is no one that has proven themselves more worthy of this obligation. Just ask Neal Katyal.
You can follow the author on Twitter @CACoreyU