Democrats’ Empty Case Against Gorsuch

by Ed Whelan

This New York Times article on Democrats’ “most prominent planned line of attack” on Supreme Court nominee Neil Gorsuch shows that they have no ammunition.

Here’s how the article sums up the Democrats’ two-pronged attack:

[1] Judge Gorsuch’s rulings have favored the powerful and well connected. [2] And he has done little, they will say, to demonstrate his independence from a president whose combative relationship with the judiciary has already clouded the nominating process. [Bracketed numbers added.]

Let’s consider these two prongs:

1. In the article, Democrats manage to cite a grand total of three cases (out of some three thousand during Gorsuch’s judicial career) in support of their charge:

a. “In one case, Judge Gorsuch argued in a dissent that a company was permitted to fire a truck driver for abandoning his cargo for his own safety in subzero temperatures.”

As I’ve explained in this extended account, the legal question in the case was whether a whistleblower provision that protects a driver when he “refuses to operate a vehicle” because of safety concerns protected a trucker who (as Gorsuch put in in his dissent) “chose instead to operate his vehicle in a manner he thought wise but his employer did not.” As Gorsuch points out, “there’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid.” Nor is there any law giving judges free rein to second-guess whether an employer’s decision to fire an employee “was a wise or kind one.”

In short, Gorsuch was dispassionately applying the law.

b. “In another [case], he ruled against a family seeking reimbursement under a federal disabilities law for the cost of sending a child with severe autism to a specialized school.”

I addressed this case in the second half of this post. I’ll note briefly here that Gorsuch’s opinion was unanimous, that it was joined by a very liberal Clinton appointee (Mary Beck Briscoe), and that it steadfastly sought to follow a 1982 Supreme Court precedent that it cited some twenty times. So it’s difficult to see how Democrats could make effective use of this case.

c. “Then there was the professor who lost her job after taking time off to recover from cancer: Judge Gorsuch denied her federal discrimination claim, saying that while the predicament was ‘in no way of her own making,’ it was ‘a problem other forms of social security aim to address.’”

I addressed this case in the first half of this post. Once again, we have a unanimous Gorsuch opinion joined by a very liberal Clinton appointee (Carlos Lucero this time). (The article notes this, but oddly doesn’t do the same for the autism case.)

As Gorsuch explains, in order to establish a claim for discrimination under the Rehabilitation Act, the professor had to show (among other things) that she could “perform the job’s essential functions with a reasonable accommodation for her disability.” But it was undisputed that “she couldn’t work at any point or in any manner for a period spanning more than six months.” So she wasn’t capable of performing the job’s essential functions. 

d. As the article notes, “Judge Gorsuch’s defenders have accused Democrats of cherry-picking.” At his hearing, Gorsuch and Senate Republicans will have plenty of cases to cite to show that Gorsuch neutrally applies the law.

It’s not Gorsuch’s job to be a “friend of the little guy” (as the article’s headline sums up the Democrats’ position) or a friend of the big guy or a friend of any party. So, yes, individuals whose plights win our sympathy will lose their cases when they have weak legal claims. That’s what the rule of law means.

e. Democratic leader Chuck Schumer, of course, doesn’t get it (or at least pretends not to). He complains that Gorsuch “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.”

No, Senator Schumer, Gorsuch would not “say pragmatic.” Gorsuch soundly rejects the notion that judges have broad discretion to read statutes in furtherance of their own assessments of what is “pragmatic.” Gorsuch would instead say that he was striving to apply the law dispassionately in these cases. And any fair reading of them would support his account.

2. Democrats’ second charge can be readily disposed of. No one who knows Judge Gorsuch or who has examined his record with care has any basis for concern that he will exercise proper judicial independence, whether from President Trump or from any other political considerations. That’s obviously part of the reason why the ABA’s judicial-evaluations committee gave Gorsuch its “strongest affirmative endorsement.”

Democrats, I gather, will try to fault Gorsuch for not speaking out against various things that President Trump has said or done. But the idea that it’s incumbent on, or proper for, a Supreme Court nominee—who is also a sitting federal judge—to inject himself into political disputes is a very odd one.

In short, this second line of attack, like the first, will operate primarily to show that Democrats don’t understand the proper role of a judge.

(By the way, my posts on the Gorsuch nomination are being compiled on this single page, for easy searching.)

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