Republican activists are freaking out about Neil Gorsuch. You have to admit they have some reason to do so. Given the GOP’s propensity to appoint people to the Supreme Court who go wobbly, see e.g. Kennedy, Souter, and Roberts on Obamacare, the base gets concerned when certain things are said.
But the freakout over Gorsuch is beyond the bounds of reason.
Yes, Neil Gorsuch said he would walk out of Trump’s office if Trump had asked him to overrule Roe v. Wade. The man is supposed to defend the independence of the third branch of government and you want him to agree to that? The headlines alone would give certain squishy Republicans the opportunity to oppose him.
Yes, Neil Gorsuch said Roe v. Wade and Obergerfell are the law of the land. And guess what? They are.
But Gorsuch has a history of rejecting stare decisis when he thinks the courts have gotten it wrong. Stare decisis is the concept that judges must give due deference to precedent. It is the argument that Democrats make about Roe v. Wade, but if a Republican asked Gorsuch about Plessy v. Ferguson, the Democrats would be appalled if Gorsuch defended stare decisis. Plessy, if you don’t know, is the case that established “separate but equal” between blacks and whites as the law of the land.
Gorsuch also has a paper trail and track record of not giving deference to bureaucrats. In fact, Gorsuch is to the right of Scalia on that issue and believes unelected bureaucrats are not allowed to make law. Likewise, Gorsuch takes a more restrictionist view of Presidential power than Scalia, which both sides should like.
Then there is the issue of Gorsuch’s true feelings. We know what he thinks. Long before Gorsuch was nominated for a spot in the federal judiciary he advocated for the position that when a private person takes the life of another person, regardless of that person’s form or condition, it is murder.
Go back to the Elena Kagan confirmation hearing and you will find a woman who affirmed various conservative cases were the law of the land.
She even refused to go down the road of gun control in her confirmation hearing. But then we see what happened on the bench. If you forgot, Elana Kagan affirmed that Citizens United is the law of the land. *gasp* Not a single Democrat freaked out over that, though. They recognized the kabuki theater.
Every person who has ever been nominated for the Supreme Court has been intentionally nebulous and intentionally deferential. We are crazy to think Gorsuch is going to be an ideological zealot in his confirmation hearing and provide not just Democrats, but Republicans like Lisa Murkowski and Susan Collins, a chance to sabotage his nomination.
Calm down, Republicans. Gorsuch has a paper trail. It is conservative, it is pro-life, and it is not deferential to the prior Supreme Court cases that got it wrong. I dare a Republican to ask him about Plessy and see if Democrats really care as much as they claim about stare decisis.
Editor’s note: The following column originally appeared on The Resurgent.