Neil Gorsuch is Just Round One in the Fight for the Supreme Court

President Trump’s nomination of 10th U.S. Circuit Court of Appeals Judge Neil Gorsuch to the U.S. Supreme Court will be met by fierce resistance by Democrats in the Senate and unrelenting demagoguery from left-wing groups and media outlets. About that there can be no doubt. (American Greatness readers may recall a reference to Gorsuch in my December 22 article, “The Trump Court: SCOTUS Could Stand Some Disruption.”)

The opposition is unwarranted. Gorsuch is an excellent choice, and he should be confirmed by the Senate easily and without unnecessary delay. The 49-year old Colorado native, a Harvard Law graduate and former Supreme Court clerk, was so non-controversial when President George W. Bush appointed him to the 10th Circuit in 2006 that the Senate confirmed him unanimously on a voice vote.

That was then. Gorsuch’s impressive academic achievements (including a Marshall Scholarship to Oxford University, where he obtained a Doctor of Philosophy in Law), professional experience (both in private practice and with the Department of Justice in the George W. Bush administration), and a decade of prior judicial experience will likely not deter Senate Minority Leader Chuck Schumer (D-N.Y.) from now claiming that Gorsuch is “unqualified” and “outside the mainstream.”

Some of his colleagues have already begun

Their arguments against Gorsuch are baseless and phony. The truth is, Trump’s opponents would have reacted the same way no matter who the president chose.

Senate Republican leadership, and especially Senate Judiciary Chairman Chuck Grassley (R-Iowa), will have to overcome massive feigned hysteria by the Left in order to secure Gorsuch’s confirmation. Liberal pressure groups such as Alliance for Justice will probably blanket the airwaves with ads attacking Gorsuch. Senate Majority Leader Mitch McConnell (R-Ky.) should be prepared to exercise the so-called “nuclear option”—eliminating the filibuster for Supreme Court nominees—if necessary to prevail.

Why are the Democrats behaving this way? There are several reasons.

First, Senate Democrats were enraged with Grassley’s and McConnell’s refusal to consider Judge Merrick Garland, lame duck President Obama’s nominee to fill the vacancy left last year by Justice Antonin Scalia’s death. Of course, it would have been extraordinary to consider changing the balance of power on the High Court in an election year. The Republicans had sound reasons to stonewall the Garland nomination, but Senate Democrats have been waiting for the opportunity to even the score. Moreover, with four reliable liberal Justices already on the court (Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor), Democrats realize that they’ve been denied a liberal majority for decades to come. They are furious.

Second, the Democratic Party and its various constituencies have adopted an obvious strategy of massive resistance to Trump’s election: protest everything, organize noisy and visible demonstrations, and object, object, object. This serves the dual purpose of throwing a collective tantrum in disappointment over Hillary Clinton’s defeat, and attempting to de-legitimize Trump’s presidency with orchestrated discord. Trump’s SCOTUS nominee, no matter how qualified, is an excuse for a choreographed conniption. The public is learning to disregard such petulant behavior, just as one would ignore a whining child.

Third, ever since Senate Democrats (led by Ted Kennedy and Joe Biden) succeeded in smearing Robert Bork when President Reagan nominated him to replace moderate Justice Lewis Powell in 1987 (ultimately defeating Bork’s nomination by a 58-42 vote), liberals have recognized their ability to politicize the Supreme Court confirmation process and demonize principled nominees.

Bork, a former Yale law professor, author of influential legal texts, former solicitor general of the United States, and sitting judge on the D.C. Circuit—second only to SCOTUS in importance and prestige—was arguably the most qualified candidate ever to be nominated to the Supreme Court. Yet, through false and inflammatory rhetoric, Kennedy and Biden were able to portray Bork as an unqualified “extremist,” in the process coining a new verb: “borking.”  The Left will try to “bork” Gorsuch. That’s just what they do.

Despite the Democrats’ consistent bad faith opposition to numerous Republican judicial nominees since 1987—including the vicious attacks on Clarence Thomas in 1991 and the attempted filibuster of Samuel Alito in 2006—Senate Republicans have failed to reciprocate against a Democratic president’s nominees. For example, when President Bill Clinton nominated Ruth Bader Ginsburg to the High Court in 1993, the Senate confirmed her by a 96-3 vote—despite her record of radical advocacy, including prior service as general counsel to the American Civil Liberties Union. This is yet another example of Republicans following the Marquess of Queensberry rules, even when the Democrats routinely use brass knuckles and hit below the belt.

Fourth, and finally, the Left is firmly in control of legal academia and the organized bar, allowing it arbitrarily to declare what the “mainstream” of legal scholarship is, and to pronounce which candidates espouse views that are “acceptable” to the liberal establishment. In the past, the American Bar Association has played an ignominious role in tarring conservative nominees as “unqualified” or “lacking judicial temperament.”

The foregoing considerations aside, Democrats should be delighted with Gorsuch’s nomination. Unlike the combative and outspoken Bill Pryor, also on Trump’s High Court short list, Gorsuch is not on record criticizing Roe v. Wade (1973). Moreover, Gorsuch clerked for Justice Byron White, a moderate who was appointed by President John F. Kennedy. When White retired, Gorsuch also assisted Justice Anthony Kennedy, the most liberal Republican appointee currently on the Court. The most notable feature of Gorsuch’s judicial decisions is that they are well-written and display a laudable respect for religious expression—hardly blemishes in the eyes of American voters.

And, it must be remembered that the vacancy Trump is filling belonged to Scalia, a stalwart originalist jurist who personified constitutional conservatism. Critics will pore over Gorsuch’s rulings on the 10th Circuit for clues about his judicial philosophy. No matter what they find—and the search will likely yield few meaningful insights, since a court of appeals judge is bound to follow Supreme Court precedents—Gorsuch is not realistically going to shift the Court to the right. At most, Gorsuch will preserve the balance on the Court as it existed prior to Scalia’s demise. Gorsuch also has the benefit of looking like a judge from Central Casting, exuding poise and grace.

For these reasons, Senate Democrats would be foolish to attempt a filibuster, which could prompt McConnell to eliminate that tool, completing the process that Sen. Harry Reid (D-Nev.) began in 2013 when the Democrats controlled the Senate. Schumer should be thinking ahead to the next vacancy. The real fight will come later, if and when one of the liberal Justices (Ginsburg, for example), or the swing-voting Kennedy, departs the Court through death or retirement and creates another vacancy. At that point, when the ideological balance of the Court could tilt decisively rightward, the Democrats will really pull out the stops.

In the meantime, consider the liberal opposition to Gorsuch a dress rehearsal for the ugly battle yet to come.

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66 responses to “Neil Gorsuch is Just Round One in the Fight for the Supreme Court”

  1. There will have to be a ritual burn him in effigy dance for the cameras to keep the base at fever pitch. The Dems know they cannot sustain this level of outrage and will have to fundraise like mad while they can. This man will pass and while the nuclear button will almost be pressed, he will get some convenient votes at the last minute to show America that the Dems are really reasonable people .

    It’s just a three act play. If McConnell is as clever as he is supposed to be, he will screw up their timing at the end of act 2.

  2. With the nomination of Judge Gorsuch, Democrats will pull out all the stops to prove they are still relevant. They’re not.

    • The left had a hissy btw 1968 and 1972. Nixon, while winning a very close election in 1968 with 301 electoral votes, he won in 1972 with over 500 electoral votes running against an extreme leftist. Sound familiar ?? Bernie or Lizzy, are you there ??

    • So .. we should have a one-party system then? Everybody agrees on everything? Doesn’t seem very American. But I suppose that is your view when you think you are right about everything. Our President surely does. So much for Democracy…

      • Democracy in action…..

        Presidency– Republican

        House of Representatives – 241 to 194 Republican

        Senate – 52 to 48 Republican

        Governorships – 33 to 16 Republican

        State Legislatures – 99 to 68 Republican

        State Legislators – 4161 to 3186 Republican

        State Trifectas – 25 to 6 Republican

        If you don’t want a one party system, then perhaps, you should convince the Democrat party to espouse some viewpoints that the people who elect them actually want…..

      • With the exception of the SCOTUS, Democrats had majorities in Congress and held the POTUS in 2008. It will swing back again. Maybe not in time for some real damage to be done, but such is life.

      • All your numbers look correct except: State Legislatures – 99 to 68 Republican
        That comes to 167 State Legislatures. I would expect 100 (50 states x 2)

      • You know, you’re right, it was 68 out of 99, so I fixed it.

      • Glad you agree he’s OUR president. You’re growing up, lad.

  3. America will get used to these fools protesting in the streets against anything and everything that Democrats want as long as George Soros keeps spending money. As Trump keeps winning, and these protests keep going, Americans will learn to pop some popcorn and sit back and laugh like crazy at the tragic comedy that is the dying embers of the Democrat Party. We have Chuckie the Clown, Pelosi the Puke, Pocahontas Warren and a number of other villains to cheer and laugh at.

    We have angry clowns, who, when told that Neil Gorsuch was approved for his last job with a 97-0 vote, including some of the Democrats denouncing him now, these clowns will say, “Huh, who’s Neil Gorsuch? We’re just protesting Trump’s nomination for SCOTUS.”

      • Absolutely. Even when it’s not being discussed the countries economics is the elephant in the room.

  4. “Trump’s SCOTUS nominee, no matter how qualified, is an excuse for a choreographed conniption. The public is learning to disregard such petulant behavior, just as one would ignore a whining child.”

    At a certain point a whining child needs and deserves more than just being ignored.

    • ‘At a certain point a whining child needs and deserves more than just being ignored.’

      But a perpetually whiny child does not. It just brings on more whining.

      • I think he means whiny Democrats need a beating, whilst violent Democrats should be met with terminal force.

    • Ah yes, the Corporal Punishment option. Can we pay to have someone slap Chuckles about the head and shoulders with a large fish or something?

  5. Pretty sure most Americans will agree this important choice should be made by the next President. The American people have the right to have their say in four years as to who will sit on the bench, I’m sure the senate will agree they need to wait and not grant any hearings to judge whats his name.

  6. Dems would be better served by following the advice given, but we have not seen reasoned behavior from them. I expect Trump to put pressure on the Senators up for re-election by holding political rallies in their home states.

    • There’s a great idea… and invite those Democratic Senators to speak.

  7. Garland should have been confirmed by the Senate easily and without unnecessary delay.

    • Why would a Republican senate have confirmed an anti-2nd Amendment justice to replace Scalia?

      • Why does that matter? Do you really believe that if Ginsburg leaves Trump will nominate someone just as liberal as her? Give me a break, hypocrite.

      • Do you really believe a Dem controlled Senate would respectfully confirm any candidate Trump offers up? Are you old enough to remember Bork and Clarence Thomas?

      • I certainly hope he does not. Presidents have to work with what they have. Trump has a Senate controlled by his party, Obama did not. I would hope that Trump nominates as conservative a justice as he can find as long as the Republicans hold the Senate. Obama didn’t have a prayer of confirming an anti-2nd amendment nominee, so it’s his own fault he didn’t nominate someone more conservative. If Democrats had the Senate he would have nominated someone much worse, I’m sure. You better hope Ginsburg doesn’t get hit by a bus, cuz her replacement is going to be a helluvalot more conservative than she is if the Republicans maintain Senate control.

  8. The Republicans blocked Garland who had an equally good pedigree purely for political reasons.
    But the author thinks it would be unreasonable for the Democratic Congress to do the same.
    What a hypocritical piece of BS.

    • Republicans blocked the vote on Garland based on advice from Joe Biden, you can look it up.,,

    • The Republicans had leverage. The Democrats don’t. Much better (politically) to let Gorsuch go through, don’t filibuster but vote against him, and save the true outrage for the next nominee.
      If McConnell goes nuclear in response to a Dem filibuster, are you willing to chance Ginsburg’s health, knowing that there would be little or nothing preventing Trump from filling her seat with Pryor? If the filibuster goes, there is no longer a political cost to Republicans to letting him go through.
      Gorsuch is essentially a younger (and still breathing) Scalia. Bill Belichek saves his best trick plays for the playoffs and Superbowl, when it matters most. Don’t waste the best political tool in the pre-season.
      BTW- Please don’t repeat the idiotic drivel about the Dems having control of the Senate after 2018. That would require flipping Nevada (likely), Arizona (possible) and Texas (doubtful), while losing NONE of West Virginia, Missouri, Indiana, Montana and North Dakota, all of which Trump won handily. Flipping only 2 seats means Pence is still the tie-breaker.

  9. “Moreover, with four reliable liberal Justices already on the court (Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor), Democrats realize that they’ve been denied a liberal majority for decades to come.”

    Uh, no. With Ginsberg and Breyer in their 80’s, it’s the American people, NOT the R’s, that denied the D’s a liberal court majority for decades to come. The D’s can take it up with America.

    • I guess you’re saying elections have consequences.

      • Just as a famous D politician once said………

  10. Commendable article. One point overlooked is that with the Internet, it is possible for the Democrats to raise money off of the nomination from liberals. Accordingly, even if they talk only to the base, they are getting paid for it.

  11. The democrats are coming into battle with knives as weapons when the GOP has cannons. Not too wise. The cannons are the GOPs control of the House and Senate with the nuclear option if needed.

    All ” Fake Tears ” Schumer and democrats are doing is making themselves look silly. They’ve become the new party of ” NO “.

      • The Republicans spent years rebuilding their base. It worked for the Republicans because they spent 10 years focusing on the States, such that they regained and held the Senate when they needed it. The Democrats have only just realized that their castle is built on unstable swamp land and flood season is coming. Their biggest problem is the have no hope of re capturing the Senate, because they have fewer and fewer known and respected State Level politicians to run for the job. They now talk of running Celebrities. But that really is only viable for California and New York, where said celebrities live. The Dem’s have along hard road back, with no shortcuts. They still don’t grasp that Trump and losing the Presidency was the most inconsequential of their losses. They’ve lost the States, the Courts and as a result Congress. Those are long term problems with no fast fix.

  12. Personally, I wish President Trump had nominated someone without a Harvard law degree. Justice Scalia himself pointed out that the court does not truly represent the nation as a whole. All of the justices have connections to either the East or West Coast and are graduates of Ivy League schools. Furthermore, ALL of the current justices are either Catholic or Jewish – bear in mind that neither of those two religious groups played significant roles in the founding or in the drafting of the Constitution. At least Judge Gorsuch is from the West. (I have nothing against Harvard – my son holds a Harvard MBA – but it does not represent the nation as a whole and there are dozens of good law schools elsewhere.)

    • It is not the Court’s function to “represent the nation as a whole”. We need the most qualified legal minds, not quotas and diversity for diversity’s sake. This nomination fits the bill. Well done Mr. President.

      • So did the last nomination, but that is water under the bridge now.

  13. There are three things that will make democrats look really bad here. 1. is that Gorsuch is without question qualified for the position. 2. is that many current democratic senators (I believe 14) voted to approve him in the unanimous vote he had. Also, Harry Reid, Barack Obama, and Hillary Clinton confirmed him. It will look pretty foolish if they confirm him without question then and don’t now. 3. 2018 is going to be a really bad election for democrats. Not only do republicans generally dominate midterm elections, but the senators up for reelection are mainly democrats. There are 10 democrat seats in states Trump won and 5 in states that are heavily republican. If those senators are too combative to Trump they will lose their seat.

  14. The US Senate disgraced itself many years ago, with the historic stupidity of the Bork rejection, and later the Thomas nomination. The result should have been obvious, a political court who lacks the respect of the American people. The only real power the court has is trust and respect. That was stolen from them by Senator Kennedy et al. (There is such a thing as justice which Teddy is experiencing today.) We now have the eternal identical 5 – 4 majority, or, after Scalia, 4 – 4 ties, from the same camps, left and right.

    What America now has is a political primary, whereby the Senate selects our unelected dictators, many of whom consider the Constitution as a suggestion. We are ruled by penumbras and emanations, nonsense.

    The Democrats will strut and fret upon the stage, for their constituencies, full of sound and fury, signifying not one positive contribution to our nation. We have substituted farce for jurisprudence. The central, real, issue are the decisions of ten Democratic Senators, up for reelection in two years, who come from states which turned red. Their jobs are on the line.

    But not substantively, for the Scalia replacement, restoration to the status quo, but the Senate’s next response to the decision by the Grim Reaper. Old judges die and several libs are creaky. In prior years, Republican presidents were brain dead and picked other liberals as candidates. Trump may or may not.

    We will watch the drama, or dark comedy, play out.

    • Not only are their jobs on the line, but we have a POTUS that will be making them nationally renown on Twitter every night. Their names will be in lights for all the voters to see.

  15. Sound analysis. I won’t put any money on Democrats listening to it.

  16. Don’t blame Trump. It was Ginsburg who declined to step down in 2013. The problem for the democrats is democracy. They didn’t win the senatorial elections in 2014 so they couldn’t nuke the filibuster and run Garland through. Then they didn’t win the Senate in 2016 so they could block the Trump agenda. Better luck next time boys.

    • Who are you going to blame when the stock market crashes? Who are you going to blame when the unemployment rate doubles? Who are you going to blame when large-scale terrorist attacks increase and we need to send tens of thousands of our young adults back into the middle east? Who are you going to blame when Russia starts annexing parts of other countries as it is with Ukraine? Who are you going to blame when we no longer have universal health care? Who are you going to blame when your social security checks get cut drastically and your medicare premiums rise drastically? Who are you going to blame when rampant cost of living increases and another great recession hits? Who are you going to blame when the poor start really rioting?

      I fully expect all of this to happen under Trump. I very much hope I am proven wrong. If I am not, I will blame Republicans for electing Trump and Democrats for nominating Clinton.

      • I’m sure blame will be placed on Trump, the entire GOP, the “bitter clingers” who voted for him and of course the obligatory Koch bros. Just out of curiousity what will you say if none of this happens?

      • I will be quite happy if none of that happens, and I will then say that I was wrong and Trump actually did a good job and deserves another 4 years. Dannyboy is right; I am pessimistic. Unfortunately, I am often right. When Clinton was nominated I predicted a Trump win. So, like I said, I hope I am wrong. I would never go so far as Republicans did and hope that Trump fails. If he is successful, then that will be good for America.

      • Skar – I think you are being overly pessimistic. The stock market is up 12% (not down) since Trump was elected. Russia is not likely to make trouble with Trump in the White House – actually they want to increase trade with the US and with Europe. I expect them to turn into more of a friend than an enemy. (You may not know this but the Obama Admin. had a lot to do with the problem in Ukraine, as Victoria Nuland, Obama’s Undersecretary of State, was taped bragging about who we were going to put in charge once the coup was finished – which helped provoke Russia to act.) I also expect Trump to defeat ISIS within 2 years, something that would not have happened under Obama. Its not the poor who are rioting, but rather the snooty and spoiled liberal college kids…

      • I’m gonna still blame the democrats. Because they didn’t convince enough people for their Fundamental Transformation, Centralized command government economy, racial conflict, envy driven-class struggle while making war on all the traditional elements of the civil society.

        If they had just convinced enough people to elect Hillary and the Senate all those things would not have happened. They had the media, Hollywood, academia, a billion dollars in campaign funds. a world class ground game and Obama and the Big Dawg himself-and they still didn’t pull it off.

        They must be quite incompetent.

      • I thought you had meds to take at 6 PM.

        DID YOU??

  17. We are about to watch the public smearing of a very good man. This is a man who was earlier confirmed by the USA Senate 100 – 0. But now the Democrats and their servants in the media will do their best to make him sound like the devil himself

    • Republicans and their servants in the media surely did that with Obama. True, not a good excuse. Just pointing out that it has worked both ways.

  18. Republicans set the standard when they went on record stating that their top priority was to make Obama fail, and then went on resisting everything Obama did. Yes, I agree that tit-for-tat is immature and the Democrats should rise above such petty revenge. However, I fully expect them to do just as the author suggests: resist everything Trump. Oh well. “May you live in interesting times,” as the ancient Chinese curse goes. Maybe someday we will get a true Independent elected. Probably not during my lifetime, but more and more people are getting disgusted with the two major parties, so there is hope.

    • What things did the republicans block?

      Obama budget?


  19. Here’s the most obvious reason that Schumer and the Dem’s would be foolhardy to put up more than a token resistance to Gorsuch. Ginsberg will not be with us for that much longer. She is very old and in poor health. Kennedy is not much better. Ginsberg in particular gambled on allowing the first woman President to replace her, and lost that bet. Which dumps the whole mess in Schumer lap.

    In spite of the New York Times cries of a stolen Supreme Court seat, the truth is no such thing happened. The Dem’s lost control of the Senate. Appointing a Justice to the Supreme Court requires two parties. The President and the Senate. In this case the Senate elected to follow rules and procedures established and defined by Joe Biden and Ted Kennedy. (This reflects a Dem pattern of short term victory guaranteeing long term loss). The Truth is right now McConnell has all the political capital he needs to nuke the Filibuster. The bulk of the blame still falls on Harry Reid (even in Schumers own words. Once again short term gains, long term losses.) McConnell could nuke it now in the early weeks of the Trump administration and it would be just another outrage for the press to rail impotently against, while the people shrug. All masked in the general shrieking about Trump actions. And if Schumer forces McConnell to do that, well it means Ginsberg or Kennedy likely get replaced by whoever Trump and McConnell want. At that point Schumer may as well stay home in bed. They could drop William Pryor into Ginsberg’s seat and he could not do a thing beyond complain on tv.

    But if they play nice on Gorsuch, and don’t force McConnell to nuke the Filibuster now? Well then he will have much less leverage and cover for doing it later. Which preserves it for when a Liberal seat comes up. Enough that Schumer might be able to force a compromise candidate. Not ideal, but by picking the fight now over an inconsequential non change of the status quo in replacing Scalia, and waging a fight that the Dem’s already lost last year, they damn themselves to a deeply conservative court for the majority of the 21st Century. So the question becomes is Schumer bright enough to realize this, and is just letting his mouth double down on lies Fed to his constituency to appease them? Or is he really as stupid and short sighted as his words make him seem?

    • No. It doesn’t matter. Regardless of the Republican argument that we should replace a conservative with a conservative, Republicans will be giddy when the chance comes to replace a liberal with a conservative. Make no mistake; they will pull out all stops to stack the SCOTUS with as many far-right conservatives as possible in the next 4 years.

      • This is a stunning example of how the Left frequently fails to understand the right, and instead views them through the lefts own absolutist filters. Conservatives are typically traditionalists. Some of the most Conservative Senators are typically the most staunchly loyal to the Senates traditions and longstanding rules. Case in point Orin Hatch. Yes he is a Conservative. But he also did not like the loss of the Filibuster for what it did to the Senate. Right now, if the Dem’s go full obstructionist on Gorsuch he will vote to end that last piece of the Filibuster. However if Gorsuch is confirmed Hatch will maintain that an acceptable candidate can be confirmed without nuking it going forward. Leaving it on the table for future nominees. The Left too long lived under Harry Reid’s absolutist rules, without appreciating some of the longer term strategies. Even when obstructionist McConnell played a much longer game. He did not waste political capital on unwinable fights.

  20. ’twill be interesting. But particularly with Sen. Hatch’s recent re-discovery of fortitude (political testicles? I say that as a woman, who knows nothing of such things ;) I think we’re well-prepared for the battles to come. The fact that even NYT allows a pro-Gorsuch editorial suggests they are trying to hedge their bets; the real dilemma for them is: do they trigger the nukes on this or hope to forestall the Reid fallout indefinitely?
    So much winning. I do not take it for granted, but I see a light that, for once, isn’t an oncoming crazy train.

  21. This is not round 1. No, this is ground zero. If the court is not protected, then no one can be protected from the court

  22. “Senate Democrats would be foolish to attempt a filibuster” Fools do foolish things! And with this group of fools you can count on it. Obama’s legacy is racial division and destruction of the Democrat Party. Of course he had plenty of help and they’re still going strong.

  23. Progressives are furious because the realize that they lost the SCOTUS for decades to come , no matter what they do and no matter how hard they try they wont be controlling the court and they know it !
    Right now there are 3 scenarios:
    1.) Nothing happens , this means the court stays split 4-4 which more than likely means that the court
    will decline many hot button cases
    2.) One or two liberal judges retires or passes away , Bader Ginsburg is currently 84, Breyer is 79 , if one
    or both drop out the conservative majority will be restored either 4-3 or 4-2
    3.) one Conservative justice retires or passes , kennedy is pretty much the only one in the age group
    prime to retire ( he was born in 1936 ) so he could retire and the fact that the GOP holds the senate
    and a republican is in the WH will make the decision easier , this of course will tilt the court 4-3 into
    the left field so kennedy obviously would wait with his retirement until scalias seat is filled which
    then will retain the current 4-4 balance