In the Democrats' fury to avenge the stalling of Merrick Garland's nomination for the Court by lame duck Barack Obama, they are revealing their contempt for the rule of law and their desire for judges to act as dictators, picking winners and losers based on who they are, not on what the law and the facts of a case say. This gutting of the Constitution has been at the heart of progressives' program to remake society, using judicial activism to rewrite laws that the democratically elected Congress and president refuse to revise.
But usually, they are not so open about it. Start with a desired outcome (usually establishing new "rights" for some group identified as "victims"), and then creatively find a rationale for rewarding the favored group. This is the very definition of tyranny: an unelected, unaccountable dictator creating laws, prohibitions, and rights according to personal preferences.
Judge Gorsuch is such a reasonable, articulate, and knowledgeable legal scholar that the only thing Democrats have to use against him is their hankering for a SCOTUS justice who will swear fealty to whatever victim groups the Democrats currently lionize, promising to "protect" them by favoring their interests.
Senator Dianne Feinstein, nobody's idea of a fool, exposed herself as just such a fan of judges as Progressive dictators in her questioning yesterday of Judge Gorsuch.
Screen grab via Conservative Review
Transcript via Grabien:
FEINSTEIN: "As you know, there have been a number of Supreme Court cases where the court has made it harder for workers to hold their employers accountable when they have experienced discrimination or be injured on the job and we have discussed that one case, Trans Am, I think three or four of us. Let me give you a short list. Ledbetter versus Goodyear Tire, which limited the ability of women to seek equal pay; Gross V. FBL Financial Services in 2009 which made it more difficult to prove age discrimination, and the University of Southwest Texas Medical Center V. Nasser in 2013 which made it more difficult for employees to prove they had been retaliated against for reporting discrimination, including based on race, gender, national origin, religion, and other factors. Vance V. Ball, which made it more difficult for workers to prove just plain discrimination claims. As Senator Whitehouse pointed out, each of these cases was 5-4 and Justice Scalia voted with the majority against the employee in every case. President Trump and others have said you are the next Scalia. So I think it is only fair to ask you, do you disagree with any of the majority opinions that Judge Scalia joined in these cases? If so, which ones do you especially disagree with and why? These have already been decided."
GORSUCH: "I understand, senator. But, again, if I indicate my agreement or disagreement with a past precedent of the United States Supreme Court, I'm doing two things that worry me sitting here. First thing I'm doing is I'm signaling the future litigants that I can't be a fair judge in their case because those issues keep coming up, all of these issues, as you point out, keep coming up. Issues around all of these precedents will be continued to be litigated and are hotly litigated. I've had post Ledbetter cases in my court, for example."
FEINSTEIN: "Then how do we have confidence in you that you won't be just for the big corporations? That you will be for the little men? This is the question that Senator Hirono, I think, so well asked yesterday. You know, those of us, I think on both sides, care very much about workers' rights. But the record is such that questions whether the court is capable in its present composition to give a worker a fair shot, so I'm just looking for something that would indicate that you would give a worker a fair shot, maybe it's in your background somewhere that I don't know about, but I'd like to have you respond to it any way you can."
GORSUCH: "Senator, I really appreciate that. I think there is a way you can take a look at this question without me potentially prejudging a case. I appreciate your respect for that. And just to finish that thought, I'm concerned that I have to look the litigant in the eye in the next case, and if I prejudge that case, they can look at me and say, 'You're not a fair judge,' and I've got no answer for that. I've got no answer for that. So what I think can give you comfort in this area, senator, I know a case or two has been mentioned yesterday. Respectfully, I suggest it does not represent the body of my work. I've written — I participated in 2,700 opinions over 10 ½ years. And if you want cases where I've ruled for the little guy as well as the big guy, there are plenty of them, senator."
FEINSTEIN: "Would you be willing to submit some of them?"
GORSUCH: "I'll name a bunch of them right now. I'm sorry, senator, of course. U 5 and 6, Fletcher, Iraqi flats case which vindicated the rights of people who had been subject to pollution by large companies in Colorado, uranium pollution. I'll point you to the magnesium case, similar pollution case in the Salt Lake City area. Colorado's effort with renewable energy, upheld that- Orr versus the city of Albuquerque, involving pregnancy discrimination in the police department in Albuquerque; WD sports, discrimination claim; Casey, Energy West, Crane, Simpson versus CU involving young women who had been harassed by the football team, AM, Browder, Sutton... I can give you a long list."
FEINSTEIN: "That's helpful. We'll find them and we'll read them."
The Hill summed up the exchange this way:
When Feinstein asked whether he would submit to the record examples of times he ruled against powerful interests and in favor of "the little guy," Gorsuch replied, "Oh, goodness, I'll name a bunch of them right now," before catching himself and saying, "I'm sorry, senator. Of course."His polite demeanor seemed to win her over a little, and when he declined to speak about his personal views of the contrasting opinions in the landmark gun control case District of Columbia v. Heller, Feinstein relented."All right, I'll let you off the hook," she said.
Judge Gorsuch's patience with fools will serve him well when he joins the Supreme Court, as he will regardless of Chuck Schumer's decision on whether or not to launch a filibuster.