One day after Judge Neil Gorsuch completed his marathon three days of testimony before the Senate Judiciary Committee, Senate Democrats signaled they would attempt to filibuster his nomination. Despite praise from many quarters for his performance and his record, including the highest possible rating from the American Bar Association that Democrat senators have lauded as the “gold standard,” Senate Democrat Leader Chuck Schumer (D-N.Y.) announced his opposition to Gorsuch and said, “He will have to earn 60 votes for confirmation.”
Gorsuch, who currently serves on the U.S. Court of Appeals for the Tenth Circuit, sat through several rounds of questioning this week. In addition to demanding deference to supposed untouchable “super-precedents” like Roe or “settled law” like Obergefell, Democrats on the committee repeatedly raised the U.S. Supreme Court’s Hobby Lobby ruling, which angered powerful Far Left lobbies, and the Religious Freedom Restoration Act (RFRA). Judge Gorsuch respectfully and skillfully explained the logic of both, particularly the application of RFRA by which the government can only burden religious expression if it can prove a compelling interest achieved by the least restrictive means. He added that if senators have a problem with RFRA or any other statute, it’s the job of legislators to write and change law, not his as a judge. Indeed, he expressed this key theme in his opening statement:
When I put on the robe, I am also reminded that under our Constitution, it is for this body, the people’s representatives, to make new laws. For the executive to ensure those laws are faithfully enforced. And for neutral and independent judges to apply the law in the people’s disputes. If judges were just secret legislators, declaring not what the law is but what they would like it to be, the very idea of a government by the people and for the people would be at risk. And those who came to court would live in fear, never sure exactly what governs them except the judge’s will. As Alexander Hamilton explained, "liberty can have nothing to fear from” judges who apply the law, but liberty "ha[s] everything to fear" if judges try to legislate too.
Highlighting Gorsuch’s “outstanding performance, his exceptional background, and the extensive support he’s received from people of all political leanings,” Senate Majority Leader Mitch McConnell (R-Ky.) called on his Democrat colleagues not to obstruct Gorsuch’s confirmation. McConnell noted the pressure Democrats are under from some quarters and that “some on the Far Left simply refuse to accept the outcome of the election,” but he said it’s time to move on and “return to the serious business of governing.”
Significantly, when nominated by President George W. Bush for his current post on the 10th Circuit, Gorsuch was confirmed without objection by a Senate that included not only Schumer and Senate Judiciary Committee Ranking Member Dianne Feinstein (D-Calif.), but also other prominent Democrat leaders such as Sens. Barack Obama (Ill.), Joe Biden (Del.), Hillary Clinton (N.Y.), John Kerry (Mass.), and Pat Leahy (Vt.).
Recordings of the Supreme Court nomination hearing are available here.
By Aaron Mercer, Vice President of Government Relations
Published: March 24, 2017