Cortney wrote about one of the attacks Democrats are going to unleash against Supreme Court nominee Neil Gorsuch. One is that he’s an Originalist. The late Justice Antonin Scalia once mocked the inference that being a member of this legal school of thought was indicative that one might also consume human flesh. Tomorrow, Guy will touch upon another attack from a former Democratic operative for Sen. Tom Udall (D-CO), who was defeated in 2014. This aide, Jennifer Sisk, accused the appellate jurist of sexism when Gorsuch, who was teaching a class at the University of Colorado Law School, reportedly said that women “intentionally manipulate” companies concerning paid maternity leave. That claim blew up when another student said no such inference or animus was ever present during this discussion.
Politico detailed some other areas where we should expect Democrats to pounce on Gorsuch. One is his involvement in the Hobby Lobby case, where contraception and Obamacare is going to be brought up. His time at the Department of Justice under President George W. Bush could come under scrutiny over his defense of the administration’s war on terror policies, enemy combatants, and Gitmo. At the same time, conservatives are, rightly, making the argument that it wasn’t his job to make policy, but to defend the government. Then, there are some issues about workers' rights (Democrats need to keep the unions happy) and the independence of a judiciary, given the Trump White House’s attacks on Washington Judge James Robart—who issued an injunction against the travel moratorium provision in the president’s first executive order on immigration:
Since Gorsuch was nominated Jan. 31, numerous Democratic senators have pointed to one major red flag in his legal opinions during his time on the 10th U.S. Circuit Court of Appeals: How he ruled on Obamacare’s contraceptive coverage mandate.
In Hobby Lobby vs. Sebelius, Gorsuch ruled in favor of the Green family, the owners of the craft store giant that sued the Obama administration over the Affordable Care Act requirement that employers provide contraceptive coverage to its female workers. And when an order of nuns sued the administration with a similar protest in Little Sisters of the Poor Home for the Aged v. Burwell, he sided with the nuns even as the full 10th Circuit denied a rehearing of the case.
A trove of documents recently released by the Justice Department reveal Gorsuch was extensively involved in defending the anti-terror policies of the George W. Bush administration — a controversial period that is sure to be scrutinized by Democrats.
“It was not Neil Gorsuch’s job to make policy decisions about how to conduct the affairs of state in connection with the war on terror,” said Leonard Leo, a senior official on leave from the conservative Federalist Society who is advising Trump on the Supreme Court. “His job as the lawyer was to advise the client on legal approaches to the objectives they were seeking.”
The president is not shy when it comes to attacking those who have disagreed with his agenda — including members of the federal judiciary — and it’s a safe bet you’ll hear the word “Trump” frequently emanating from Democrats during the marathon four-day set of hearings.
Trump famously dismissed Judge James Robart, who temporarily blocked the first version of Trump’s controversial migration ban, as a “so-called” judge. Back in the campaign, Trump questioned whether an Indiana-born judge could rule fairly in lawsuits involving Trump University because of the jurist’s Mexican heritage and Trump’s hardline views on immigration.
Democrats have already telegraphed that they see a major vulnerability in Gorsuch’s rulings for large companies and institutions over sympathetic plaintiffs.
Senate Minority Leader Chuck Schumer held a news conference last week with people that the New York Democrat said had been victimized by Gorsuch’s legal decisions. Among his guests: the Hwang children, whose mother sued Kansas State University because she was denied an extension of her six-month leave of absence caused by her cancer diagnosis. Gorsuch sided against Hwang, who died last year.
Gorsuch has shown deep skepticism toward the so-called Chevron deference, a longstanding doctrine that calls on judges to defer to how federal agencies interpret key laws. This philosophy arose out of the landmark 1984 Supreme Court case, Chevron U.S.A. v. Natural Resources Defense Council.
Democrats say the Chevron standard has led to key victories in environmental and labor policies and that Gorsuch’s views could put those gains at risk. That, Democrats argue, is especially alarming in the era of Trump, who has launched a major assault on federal regulations.
These don’t appear to be major obstacles. I’m sure the Left will try to say that Gorsuch’s labor rulings killed people, ergo Gorsuch is a murderer, but even Senate Democrats acknowledge that Trump’s nominee is qualified. Even the media agrees that he’s a well-respected, effective, and mainstream choice.
Also, let’s not forget that Trump is not the only person who has ripped the judiciary. Obama did so in full view of Congress and the American people.