Gorsuch Confirmation Hearings: Is He Really The Next Scalia?

Gorsuch Confirmation Hearings: Is He Really The Next Scalia?

Some of his answers today during his confirmation hearing were very troubling and point to the fact that he may not be  the next Scalia, but rather the next John Roberts or Anthony Kennedy.

Nick Yanakas, Senior Social Policy Editor

A few months ago when President Trump was in the process of narrowing down his selection for the Supreme Court, my view on the matter was that Senator Mike Lee (R-UT), Thomas Lee (an Associate Justice on the Utah Supreme Court), or Senator Ted Cruz (R-TX) would have been the strongest choices the President could have made for their track record in defending the Constitution, their willingness to overturn bad judicial Precedent, and by extension their understanding that the court system has been completely turned on its head and its power expanded far beyond what the framers intended.

The President instead proceeded to nominate Neil Gorsuch, a Judge on the 10th Circuit Court of Appeals, to fill the vacancy left behind by the passing of Associate Justice Antonin Scalia. His track record on a number of issues were strong and he’s received accolades from a number of Conservatives, including the aforementioned Senator’s Lee and Cruz. However, his views on the Judiciary, Precedent, and Roe V. Wade in particular, were largely unknown. In spite of that, many pro-lifers dismissed these concerns; with the exception of Andy Schlafly of the Eagle Forum.

Schlafly took a lot of heat for speaking out against Gorsuch and after today’s hearing, sadly, it appears he is owed an apology from those who attacked him.

Before I go into detail about my concerns with Gorsuch today, as I wrote previously, the judiciary is fundamentally broken and until the conservative legal establishment comes to terms with that reality, we will continue to lose in the courtroom. Just “appointing better judges” won’t work because their aren’t enough “good” judges out there. Even young lawyers who go to law school with a conservative mindset are not taught the proper role of the judiciary which is why so many reject prudent judicial reform because they have accepted the false premise of judicial supremacy. Even if Gorsuch truly is of the mindset of a Thomas or a Scalia we still have the systemic problem of the judges and justices becoming our oligarchs, most recently this oligarchy has shown its ugly face in striking down the President’s perfectly legal executive orders on immigration.

While those systemic reforms are necessary, I still simultaneously believe it is crucial we get an originalist on the bench to replace Scalia, which brings me to some MASSIVE red flags that have been exposed with Judge Gorsuch in today’s confirmation hearing.

On Roe V. Wade: “Roe is a precedent that has been affirmed repeatedly.”

Ok? So does that mean you think it is settled law? One of President Trump’s major campaign promises was that he would appoint a pro-life originalist to the Supreme Court, that response gave us no indication whatsoever that Gorsuch would rule to overturn Roe or overturn other constitutionally-erroneous decisions. Some may argue that he was merely responding to the question posed before him, to which I say he should’ve said, “While Roe is a precedent, it is certainly not settled law.”

On Precedent: “For a Judge, Precedent is a very important thing.”

Perhaps the most troubling thing I took from Judge Gorsuch in his hearings today was how reliant he sounds on Precedent. At one point, Judge Gorsuch, Dred Scott V. Sanford was precedent, would you have accepted that as settled law? How about Korematsu V. United States? As I touched on above, even a majority of conservative legal minds accept the false notion of judicial supremacy; the idea that if the court rules on a case, no matter how outrageous or unconstitutional the outcome, it becomes “the law of the land” and cannot be re-visited down the road. If this is Judge Gorsuch’s worldview--and I don’t take saying this lightly--then all options must be on the table, including voting down his confirmation. In order to fill the shoes of the great Antonin Scalia,we need someone who is a true originalist and will use that philosophical underpinning to not only rule as an originalist in prospective cases, but also work to undo the mountain of unconstitutional Precedent generations of jurists have piled up (including Roe and Obergefell).

Asked by Senator Graham (R-SC) if President Trump asked him to overturn Roe in their meetings: “Senator, I would have walked out the door.”

This was another troubling response, why would you have walked out the door? Why would that have been such an unreasonable thing to ask? He wasn’t asking for how you may rule in a prospective case, but rather your opinion on a previous case. Given this false reality of judicial supremacy that we are living under it is perfectly reasonable and expected to want to know where he stands on these issues given the amount of power and influence he would have over our lives should he be confirmed. Therein lies the dichotomy between the left’s judges and our judges. The left always knows how their judges will rule whereas our judges we have to cross our fingers and pray they are who they say they are. Hillary Clinton even stated in response to a debate question that if she were to be elected she would look for judges who would overturn Citizens United V. Federal Election Commission. There isn’t even an equivalency between the two sides; the left is looking for judges who would continue to pervert the Constitution while we are simply looking for judges to uphold it (which is consistent with overturning Roe V. Wade). Despite this, Gorsuch would have “walked out” if Donald Trump asked him that, again I ask, why?

Gorsuch again on Roe: “What was once a hotly contested issue is no longer a hotly contested issue. We move forward.”

If we aren’t going to to get a judge who is firmly opposed to Roe V. Wade then what exactly are we fighting for. Seriously, if we cannot rely on him to uphold the Constitution here and strike down an outrageous ruling then where can we count on him?

Gorsuch said a number of other things on the Establishment Clause and illegal aliens that also give me pause. But on Roe alone, if we cannot count on him on this issue and get clarification and assurance that he will work to overturn unconstitutional precedent then it is clear he is not the next Scalia but rather the next John Roberts or Anthony Kennedy. Justice Scalia’s seat is too important to blow and if conservatives cannot get clarity from Gorsuch on these issues then he must be voted down.  

For more on what conservatives should be looking for in a Supreme Court Justice, check this article out.

Follow this author on Twitter @NYanakas

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