Law & the Courts

Garland, Gorsuch, and a Tale of Two Charts

President Obama introduces Judge Garland at the White House, March 16, 2016. (Reuters photo: Kevin Lamarque)
NYT: Obama’s nominee was a centrist, but Trump’s is a wingnut.

It didn’t matter that Judge Neil Gorsuch was a highly respected jurist or that his stature as a leading conservative intellectual legal thinker made him a natural successor to the late Justice Antonin Scalia. The growing number of Democrats who are determined to not so much oppose the Trump presidency as “resist” it wasted no time blasting Gorsuch as “anti-woman” and a tool of the corporate class. In doing so, the party base made it clear to Senate Democrats that nothing less than a battle to the death to stop his nomination would be considered acceptable. But in case there was any doubt about the duty of Democrats to oppose Gorsuch in spite of his impressive qualifications, it was removed by the graphic and accompanying article that the Times placed at the top of its home page almost as soon as President Trump announced the nomination.

Based on “President-elect Trump and His Possible Justices,” a study by Washington University in St. Louis, the Times chart analyzes Gorsuch’s legal history as being to the right of every justice on the current court with the exception of Justice Clarence Thomas. Indeed, it asserted that he was more conservative in his opinions than Justice Scalia. The Times quoted the study’s authors as predicting that Trump’s nominee, if confirmed, would seek to “limit gay rights, uphold restrictions on abortion and invalidate affirmative action programs.” Those are fighting words for the Left and enough to ensure that even red-state Democrats up for reelection in 2018 should fear the reaction from their party’s grassroots if they were inclined to oppose a filibuster, let alone vote to confirm Gorsuch.

But Times readers with long memories should recall a similar chart published last March after President Obama nominated Judge Merrick Garland for the same seat.

Obama and his reliable cheering section in the mainstream media touted Garland as a centrist pick rather than a doctrinaire liberal. That talking point served as an effective stick with which to beat the Republicans who refused to consider his nomination because of the unprecedented nature of the president’s demand that a Senate controlled by the opposition party should allow a president to alter the ideological balance of the court during an election year. But the claim that Garland was a centrist was debunked almost immediately by the same liberal flagship of the mainstream media that has labeled Gorsuch as being to the right of Scalia.

The chart published by the Times on March 16, 2016, demonstrated that Garland was to the left of two of the court’s current liberals – Stephen G. Breyer and Elena Kagan – and a virtual match for Ruth Bader Ginsburg, leaving only Sonia Sotomayor slightly to the left of him. As the Times helpfully pointed out, Garland’s presence on the high court would have helped “shift the court to be more liberal.” This painfully obvious observation was studiously ignored by the paper’s editorial column over the following months as it continued to argue that Obama’s nominee was a neutral choice that Republicans should confirm.

That Garland was no moderate but, in fact, a doctrinaire liberal was not something the same newspaper chose to recall today as it sought to lead the charge against Gorsuch as an extremist. But there’s more to this than just the usual liberal hypocrisy we’ve come to expect from the Times.

For one, the Left–Right analysis in the Washington University study is irrelevant to many of the cases that the Supreme Court adjudicates. Like the man whose seat he hopes to fill, Gorsuch is an originalist. This means that Gorsuch, much like Scalia, would be far more protective of the rights of defendants than Garland would have been. Those who seek to protect the Constitution as it was conceived and written are primarily concerned about protecting individual rights. Progressive statists such as Garland tend to be more interested in increasing the power of the government to infringe upon those rights in order to promote the political agenda of the Left.

Gorsuch, much like Scalia, would be far more protective of the rights of defendants than Garland would have been.

Liberals have been quick to demonize Gorsuch for his rulings in favor of the Hobby Lobby Corporation and the Little Sisters of the Poor as they successfully fended off the Obamacare contraception mandate. But their belief in statism has led them to distort the significance of those cases. One needn’t be opposed to contraception, let alone the rights of women, to understand that imposing the contraception mandate (which also covered abortifacients) on people of faith violated their right to religious freedom. But to liberals, even the First Amendment’s protection of free exercise of religion can and must be sacrificed to achieve their goals.

Those cases are a reminder that what is at stake in the battle to get the Supreme Court back to nine is more than a partisan vendetta. Claims that Gorsuch’s seat was “stolen” from Obama or Garland are as absurd as they are telling. Obama had no inherent right to demand that a Republican Senate majority acquiesce in his desire to flip the court from a conservative majority to a liberal one. As the Times’ charts point out, the difference between Garland and Gorsuch is such that this is not merely a petty party grievance but a genuine conflict; how it’s resolved may well determine the future of religious liberty and other pressing issues of our day.


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