Did you notice? This week already we are at war in Congress over the reform of the Healthcare Law, From the NSA and FIB, Admiral Rodgers and Jim Comey both testified about wiretapping before Congress, and today was the second day of grueling hearings regarding Judge Neil Gorsuch before the Senate Judicial Committee regarding his pending confirmation as the next U.S. Supreme Court Justice. I do not remember 48 hours in Congressional history that so much work was done, except maybe for arguments over how long an adjournment should last for Congressional vacations.
In all this noise one event stands out as what may be the most important historical event of the next few decades: the next
SCOTUS Judge. I am enamored at this process and this judge. I know, I know: I’m a political junkie. But the political pieces of this process are not necessarily what has grabbed my attention. It’s the historical implications of not just this confirmation, this judge, or the hearings. It is that for the first time in my memory the deep divide between conservatives and liberals in D.C. were front and center all day on international live television. And the differences are monumental.
I have always known there are stark contrasts between the two thinking types, but I never knew how drastic they are. Regarding federal judges and their nomination/confirmation process, I have heard the rhetoric about whether or not they were “Originalists.” Originalists are those jurists who feel the U.S. Constitution and its subsequent laws as amended through two centuries are a literal roadmap for ALL things regarding private and public life for Americans just as written. The other side believes the Constitution is a living, breathing entity that is changing as America and Americans change through the years, and therefore interpretations of Constitutional laws should morph at the same time. While I have heard those titles placed on two groups of judicial thinkers, until today I never knew just how different those are. ( By the way, Neil Gorsuch is an Originalist)
In grueling testimony that lasted about 12 hours, Judge Gorsuch fielded about every legal question you could imagine a dozen or so Senators could throw at him. And boy did he do a great job! If you missed the hearings, let me fill you in. Judicial Committee Dems led by Dianne Feinstein (D-CA) grilled the Judge on all things Constitutional. Each expressed their version of what the framers of the Constitution intended before beginning their questioning. Each Democrat in their 30 minute allotted time questioned the nominee about specific cases that came before him on the 10th Circuit Appeals Court in Colorado as to why he ruled the way he did and why he did NOT rule the other way. Judge Gorsuch was simply amazing in his responses. He could have easily gotten flapped and out of sorts, because (as you can imagine) those questions were not friendly, not kind or flattering in any way, and were designed to expose some judicial flaw or flaws in the nominee that would certainly disqualify him from service on the U.S. Supreme Court.
As you can imagine, questioning from the Conservative side of the room was much kinder, amicable, and, I am ashamed to say, more professional than was that from their liberal counterparts. That is not to say they were soft on the nominee, but they each expressed their opinion of his 10 year service on the Federal Appeals Court, then asked substantive questions and allowed him to give complete and thorough answers.
It was glaringly obvious from the onset the Dems all used scripted talking points and were not seeking in any way to learn anything new about the nominee that might assist in their votes to confirm or not. Not a Senator at the table that is liberal will vote for Gorsuch. And that’s unfortunate. He is probably the most qualified judge that has even been mentioned as a possible replacement for Judge Antonin Scalia. He demonstrated today his understanding of U.S. and Constitutional Law, how that pertains to American individuals and companies, and what judicial responsibilities are and what courts and judges can and cannot do according to the law. Democrats did NOT like that approach from the Judge. Continually Democrats tried to pin him down, digging for answers to hypothetical cases that may appear in the Court after he begins serving. Again and again he told the questioner he does not make judicial determinations in his courtroom based on his personal opinions or feelings, but always based totally on the law, AND that he could not discuss details of any potential case that might come before a court on which he served.
There were a couple of dramatic moments that vividly illustrated this vast divide between Democrats and Republicans as it pertains to Constitutional law and the Supreme Court. The most dramatic was in a series of questions from Senator Dick Durbin (D-IL). He asked the nominee about details and thoughts the Judge used during his adjudication of several specific cases. One specific case caught my attention. It was about a truck driver who while driving was caught in a snow and ice storm which forced him to pull over in his truck with its trailer. Temperatures during the storm were below freezing, so he left the truck and trailer there. His company fired him for violating written company rules that prevented any driver from leaving his truck and trailer under any circumstances. He sued the company in District Court who ruled for the company. The driver appealed to Gorsuch’s Court. He upheld the ruling against the driver. Durbin berated Judge Gorsuch for in such a heartless way ruling “for” a big company against a “little” guy — the truck driver. Judge Gorsuch in his response drew the picture in neon colors of the difference between how liberals and conservatives believe the Constitution should be viewed.
The nominee in his lengthy response to Senator Durbin explained that he and each judge involved in the case had no choice but to make a legal determination which excluded ANY personal feelings. The company acted in good faith and made their decision based on written company policies that every employee read and agreed to work under at their time of initial employment. Durbin interrupted Judge Gorsuch at this point in his response and said this: “How could you — a judge — make such a harsh ruling against a truck driver who left his truck to keep from freezing to death? Doing so was heartless, and illustrates a propensity to adjudicate in favor of corporations over people.” The Judge’s response: “Senator, I could not nor should any judge ever make any ruling based on personal beliefs or opinions, no matter how distasteful the details of a case may be. I made that case decision based on one thing and one thing only: the law.” He continued, “Making laws is the job of this House, not the Courts. Any law that would have prohibited the company from taking actions that it did should have been passed into law by this House. That law wasn’t passed. The company did nothing against the law and my finding was the only one I or any other judge could make.”
So there it is: liberal politicians today want and expect federal judges to render decisions based on what they believe is the right thing to do regardless of what the law says. Originalists (conservatives) feel that the judicial system is there for one purpose and one purpose only: to interpret laws on the books. Liberals want judges to render decisions on cases in their courts based on their personal political opinions of current issues regardless of what the U.S. Constitution says. Judge Gorsuch to Senator Durbin: “We don’t make laws. You’re supposed to.” The problem with that is Durbin and friends want all federal judges to do just that — write and rewrite laws to fit the liberal narrative of the day regarding the applicable political circumstances of each case.
That’s a scary and dangerous thought. But it’s an important one. As I said, this may be the most important next few weeks of the next few decades. I encourage all to tune into C-SPAN or the national news network of your choice as you can tomorrow to watch the next round of questioning. Neil Gorsuch should be easily confirmed. But that’s another story.
Tomorrow: Will the Nuclear Option be Necessary?
