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Today the gavel will fall to open the United States Senate Judiciary Committee hearings to consider whether Neil Gorsuch should become the next Associate Justice of the United States Supreme Court.
If he’s learned anything from prior nominees, Gorsuch will use the hearings as an opportunity to speak without actually saying anything. When asked pointed questions, he will dodge and deflect, and if cornered beyond escape – simply refuse to answer on the ground that it may affect his future ability to judge. To the extent that he does so, he will likely pass through the Senate’s confirmation process.
This technique of non-engagement began soon after we saw what was later to be termed “Borking.” It was inaugurated as a result of statements made by then Massachusettes Senator Ted Kennedy. The Lion of the Senate, as he was known, ran to the Senate floor an hour after Judge Robert Bork was nominated by President Reagan to sit on the Supreme Court. Thin on facts, Kennedy viciously attacked Bork with a slanderous stream of disparagement including, but not limited to, the following:
Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.
Five years before this statement, Bork was unanimously approved by the Senate to his seat on the U.S. Court of Appeals for the D.C. Circuit, commonly regarded as the court immediately below the Supreme Court in the federal court hierarchy.
Why the change? Well, the leftists needed to win. They perceived that if Bork were to replace the retired Justice Powell, the balance of power in the country would swing strongly in the direction of conservatives. Such a swing would threaten such progressive triumphs as Roe v. Wade, and so in the months between the nomination and the hearings, leftists spent millions to sow opposition.
When the dust settled, the left won, and Bork lost big. The conventional wisdom became that it was Bork’s outspokenness and candid revelations of his opinions on social issues that ultimately caused his downfall. The solution was simple – do not offer your opinions on these things.
None of this is to say that Democrats won’t try to sink Judge Gorsuch’s nomination. They have a bit less in the way of motivation because he is viewed as an ideological brother of deceased Judge Antonin Scalia. That means the current balance of the high court is not at stake, but it’s likely the Democrats will give it their best shot. As such, expect to hear quite a bit about how Gorsuch is not a “mainstream” judge and of his “extreme” views. No one will ask why they didn’t try to impeach him from the 10th Circuit Court of Appeals where he now sits if he is so extreme, or what made him so controversial in the past ten years. It was in 2006 that his nomination was so uncontentious that it sailed through the Senate on a voice vote with bipartisan support.
Democrats will have help in damaging Gorsuch with the legacy media – as they did with Bork. Saturday, the Washington Post published what was essentially a two-thousand-word love letter to Democrat Senator Al Franken, who sits on the committee, and who announced plans to attack Gorsuch for “pro-corporate bias.” Expect that bias to be demonstrated as follows: The plain written language of a law benefitted a corporation and hurt an individual (extra points if the individual is non-white, female, a single mother, etc.). Judge Gorsuch then issues an opinion applying the law, ruling for the corporation. Judge Gorsuch is thus hostile to individuals and votes for big business.
The New York Times did their part with a piece last week – how’s this for a title – “Neil Gorsuch Has Web of Ties to Secretive Billionaire.” Just like a villain in a movie! As it turns out secretive just means not wanting to give interviews, and ties mean he owns a very nice fishing cabin with a couple of other lawyers – one of whom works for a secretive billionaire. Not exactly a pearl-clutching revelation.
Billionaire, Philip Anschutz, was Gorsuch’s client when Gorsuch worked for a law firm in D.C. Gorsuch then received help in his nomination to the 10th circuit when Anschutz had another attorney of his write Gorsuch a letter of recommendation to then-White House Counsel Harriet Meyers. That’s the big connect. You can read it here – it is the very definition of proforma. No matter — we will soon hear about how Gorsuch is poised to do Anschutz’s bidding on the court.
Current Senate rules require Supreme Court nominees to win with sixty votes. Will Democrats be able to get forty-one votes against Gorsuch? If so, will Republicans eliminate those Senate rules and allow the nomination to succeed with a simple majority – exercising what has been termed the nuclear option? Anyway you look at it, this should prove to be a curious week as political foes draw up sides in what might prove to be a contentious fight for the ideological heart and soul of the Supreme Court.