Judge Neil Gorsuch is undergoing his confirmation hearing in the Senate Judiciary Committee and by all accounts has performed exemplary in responding to question. The Democrats are doing what is expected of them in being the loyal opposition and asking pointed questions on topics that they would never ask a nominee of a Democrat President. Sen. Diane Feinstein, the ranking Democrat member of the Committee has led the attack and some of the questions are actually quite humorous.
She started out today on women’s rights and queried whether his conservative leanings might set back women’s rights. She ignores that an independent woman who was a top-notch lawyer in her right and once served as the head of the Environmental Protection Agency raised Judge Gorsuch. To Sen. Feinstein and other liberals anyone that is not in lockstep with their form of political correctness is anti-women and cannot be trusted to protect women. She opined that Judge Gorsuch would be pivotal in these type of decisions and using an “originalist” interpretation of the Constitution might be used to say that rights afforded women and gays would not apply under the Founding Father’s document. Judge Gorsuch was up to the task with this frivolous question by responding that nobody expects us to go back to the horse and buggy days and pointing out to the Senator, in case she or her staff had not noticed, that the Supreme Court has made it clear with precedent that the Equal Protection Clause applies to everyone, even those that it did not consider when written.
Judge Gorsuch answered all question in a forthright manner and effectively dodged any question that might hint on how he might rule in a case either before the Court or one that hypothetically could come before the Court. This is what all nominees do and yet I see so many on the left criticizing him for not expounding in detail on how he would rule. Again, forget that they did not apply that same standard to the two nominees under President Obama, Sonia Sotomayor and Elena Kagan. Perhaps since they are women they just assumed that they would fall into lockstep with what they wanted to hear or maybe it was because a liberal President had nominated them that they were willing to take their answers at face value.
I will point out that Republicans have acted pretty much the same when a Democrat President nominates a Justice. That is the nature of the game and the party out of White House Power has to make a show of being tough so they don’t generate anger and criticism from their base. Many will remember when Sonia Sotomayor was undergoing questions she opined that “a wise Latina woman would reach a better conclusion than a white male”. Could you imagine the outcry if Gorsuch were to make a similar statement alluding that a white male might make a better decision?
I am confident that Judge Neil Gorsuch will be confirmed and will take his place on the Court some time in April. He is simply to well qualified and to well prepared to find fault with him enough to deny him confirmation. But you can also be sure that a majority of Democrats will vote against him rather than face the wrath of the left wing of the party. But if you were to ask them privately and in secret the majority of those that vote against him would say that he was qualified and will do find on the Court.
But to understand what is really going on you have to pull back the screen and see what is causing this much angst in the Democrat party and their liberal supporters. Way to many of them are still seething about the Republican Senate failing to take up the nomination of Judge Merrick Garland to fill seat of the deceased Justice Scalia. They say the Republicans stole the seat and for that reason alone every Democrat should vote against any Trump nominee. I suspect that if Trump had nominated Merrick Garland again a significant number of people on the left would have immediately changed their opinion of Judge Garland and opposed his nomination.
I suspect that the Senate Judiciary Committee will report the nominee out of Committee on a party line vote some time next week. In early April the Senate as a whole will take up the confirmation and I will predict that after a lot of hot air has been spewed on the Senate floor both praising and denouncing Judge Gorsuch he will be confirmed with about 63 votes. It will not be 60 because that would expose every Democrat that voted for him to the attacks of the left of being the deciding vote. They will give him this level of support because they realize he is a well-qualified candidate and his ascension to the Court does little to change the balance on the Court. They also don’t want to force Majority Leader Mitch McConnell (R-KY) to use the nuclear option of only requiring 51 votes.
I also want to once again address this claim that Republicans stole this Supreme Court seat. Yes, they refused to hold hearings on Judge Garland. Yes, he is a fine judge and was well qualified to sit on the Supreme Court. But politics did get in the way and I wrote about this earlier and made it clear that Democrats would not have done it any differently if the roles were reversed. In a small way the Republicans did Judge Garland a favor by not holding hearings. He would not have had the votes to either clear committee or gain confirmation on the floor. This would have placed an unnecessary black mark on an otherwise distinguished career.
If anyone believes that Harry Reid would have allowed a Republican President to nominate a new Justice in an election year they are sadly mistaken and have not spent much time watching the goings on in the Senate. Mark Begich (D-AK), a moderate to liberal Democrat served one term in the Senate and lost his reelection bid in part, according to him, of not being able to get one amendment voted on during the six years he served. While not as extreme the same basic point could be made about Mark Pryor (D-AR) and Mary Landrieu (D-LA) who both lamented not being able to get the Democrat leadership to support issues important to them back home.
Now if another seat comes open on the Court, particularly if it is Kennedy, Ginzberg or Breyer, then you can expect the battle to confirm a new Justice to reach epic proportions because this new Justice would actually change the dynamics of the Court. Then the “dark money” that Sen. Whitehouse (D-RI) spoke of when referring to groups that have funded a campaign supporting Judge Gorsuch’s nomination would be I full display on both sides of the aisle. You can be sure that every liberal group would be demanding the defeat of the new nominee and the Republicans would be in full throat supporting that nomination. It will be then that Sen. Mitch McConnell might be forced to adopt the nuclear option to get someone confirmed. That my friends, both liberal and conservative, will be the “Fight of the Century.”