Law & the Courts

The Left’s Smear of Gorsuch

Gorsuch on Capitol Hill, February 2, 2017. (Reuters photo: Yuri Gripas)
They’re wrong about him, and about how the judiciary should work.

On Monday morning, eleven progressive groups sent a joint letter to Senate Democrats, urging them to oppose Neil Gorsuch’s nomination to the Supreme Court on the grounds that he will fail to check the Trump administration’s possible abuses of power. MoveOn.org, NARAL Pro-Choice America, and the SEIU were among the groups that filed the letter.

This latest progressive attack on Gorsuch is particularly striking because it fundamentally misrepresents both the nominee himself and the proper understanding of our government’s structure. The letter refers to Gorsuch as “an ultra-conservative jurist who will undermine our basic freedoms and threaten the independence of the federal judiciary.” Without providing a scrap of evidence, it asserts that his “extreme ideological agenda” is supported by some “white nationalist groups.”

The progressive co-signers do their very best impression of conservative rhetoric, highlighting the importance of “our constitutional system of checks and balances [which] requires three equal branches of government,” a system that will, apparently, be endangered by Gorsuch. In its most egregious display of abject dishonesty, the letter claims “there is zero evidence that Judge Gorsuch will be an independent check on this runaway and dangerous administration.”

Either these left-wing groups truly know nothing about Gorsuch, or they are hell-bent on twisting the truth beyond recognition in order to portray him as an existential threat to the country. Given their track record, it makes sense to bet on the latter. And their fear is understandable; Gorsuch isn’t a threat to constitutional democracy, but he surely is a threat to progressive “rights” that are found nowhere in the Constitution.

This letter has as its premise an inaccurate understanding of the Supreme Court’s purpose and the manner in which its justices ought to carry out their responsibility. The fact that Gorsuch has ruled on some issues to the benefit of conservative interests does not make him an “ultra-conservative jurist.” Supreme Court justices should not rule based on their “progressive” or “conservative” alignment, and Gorsuch is perhaps the best example of a judge who refuses to let his politics interfere with his decision-making.

As a constitutional originalist, Gorsuch believes his role is to read, understand, and apply the text of the U.S. Constitution to any given case under his purview. Rather than impose an “ultra-conservative” ideology through his jurisprudence, he allows the Constitution’s text to dictate his decision-making, the best indication of an independent judge who will consistently check the power of the other two branches of government regardless of his personal views.

In fact, Gorsuch’s jurisprudence up to this point could not with a straight face be labeled “extreme.” Take, for example, the fact that not a single one of his written opinions has been overturned by the Supreme Court on appeal. How could it be possible that, in over ten years, an “ultra-conservative jurist” with an “extreme ideological agenda” has never once been contradicted by a balanced Court that has often departed from an originalist view of the Constitution?

Not to mention that Gorsuch has garnered praise from people on the left as well as the right, who often note his willingness to stand on principle. Justice Ruth Bader Ginsburg called him “very easy to get along with” and praised his writing, while a former Obama-administration official penned the New York Times column “Why Liberals Should Back Neil Gorsuch,” praising his fairness, decency, and good temperament.

They’re distorting Gorsuch’s record.

While the letter contends that Gorsuch’s record proves he will consistently side with the Trump administration and federal power — and therefore against civil rights — his record shows the opposite. Gorsuch himself ranks among his most important decisions several cases in which he sided with defendants against the power of the federal government. For example, he upheld the religious-liberty rights of an American Indian against the Bureau of Prisons, and he dissented from a Tenth Circuit majority opinion that sided with law-enforcement officers who had entered a defendant’s house without a warrant.

Progressive groups are free to oppose Gorsuch, and their dislike of his nomination is surely understandable, especially given the fact that many of their supposedly essential “rights” lack grounding in the Constitution. But it would be easier to take them seriously if they demonstrated an understanding of the Supreme Court and expressed their disapproval without distorting Gorsuch’s record.

— Alexandra DeSanctis is a National Review Institute William F. Buckley Fellow in Political Journalism.

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