- - Wednesday, March 22, 2017

ANALYSIS/OPINION:

There was a remarkable exchange between Sen. Dianne Feinstein, ranking member of the Senate Judiciary Committee, and Judge Neil Gorsuch, President Trump’s nominee to replace Justice Scalia on the Supreme Court, during Tuesday’s confirmation hearing.

In her opening statement, Mrs. Feinstein declared that senators’ job during the confirmation hearing was to determine whether Judge Gorsuch is a “reasonable, mainstream conservative.” It is highly ironic that Democratic senators have assumed the right to determine who is a mainstream conservative. But putting aside that irony, it is a sensible standard by which senators could evaluate whether Judge Gorsuch should be confirmed to the Supreme Court.

Of course, that is not actually the standard that Democratic senators are using. Judge Gorsuch clearly is a reasonable, mainstream conservative, and if that was the Democrats’ true standard, the public — and the judge — would not have to endure four days of political theater called a confirmation hearing.

In her questioning, Mrs. Feinstein was more honest about her standard for evaluating Judge Gorsuch. In conformity with the ethical requirements for judges, he refused to bind himself to how he would rule on future cases, prompting Mrs. Feinstein to lament: “How do we have confidence in you that you won’t be just for the big corporations? That you will be for the little men? … I’m just looking for something that would indicate that you would give a worker a fair shot, maybe it is in your background somewhere that I don’t know about, but I’d like to have you respond to it any way you can.”

Every federal judge takes an oath of office that says: ” I will administer justice without respect to persons, and do equal right to the poor and to the rich.” Mrs. Feinstein seems to be suggesting that Judge Gorsuch abandoned that oath and the impartial administration of justice in favor of an explicit bias in favor of one class of litigants over another. This is the disturbing standard that is underlying much of the Democrats’ criticism of the nominee.

Democrats want to abandon the U.S. rule of law, which protects the rights of all people equally, for a system in which the identity of an individual party predetermines the outcome of the case, regardless of the applicable law. This is an extension of their concept of identity politics. Now they’re advocating “identity law.” This is a terrifying picture of what our system of justice could be and what many systems of “justice” throughout the world are and have been. Fortunately for the rights of all Americans, whether big corporations or the “little guy,” that is not the system we have.

Back to the exchange during the hearing: Judge Gorsuch thanked Mrs. Feinstein for the opportunity to correct the presentation of his judicial record, noting that he had participated in more than 2,700 opinions in over 10 years on the federal bench and Democratic senators had selected just a few to focus on that do “not represent the body of my work.” He has, as he pointed out, ruled for both big corporate and “little guy” parties, depending on the law applicable in that case. Mrs. Feinstein then asked if he could submit some of those cases.

Judge Gorsuch replied, “I’ll name a bunch of them right now.” Then he listed 13 cases in which he ruled for people who had been harmed by pollution from large companies, young women who had been harassed, women who had faced pregnancy discrimination, and other “little guys.”

Mrs. Feinstein’s response was astounding: “That’s helpful. We’ll find them and read them.” Think about what that means.

In the seven weeks since President Trump announced Judge Gorsuch as his nominee to Scalia’s seat on the Supreme Court, Mrs. Feinstein and her staff have not bothered to thoroughly research or review the judge’s extensive record. All of his decisions are readily available online; they do not even have the excuse of having to go to the library and sift through enormous books to find his cases.

Instead of engaging in a meaningful review of the nominee and his qualifications, the senator and her staff have been content to rely on the talking points given to them by radically progressive groups whose only goal is to oppose Mr. Trump, Republicans and conservative principles in any and every way possible.

As he has been throughout the hearing, Judge Gorsuch was incredibly gracious when faced with Mrs. Feinstein’s utter ignorance of his record. He reiterated his commitment to the rule of law, and to not judging cases according to the identities of the parties involved but according to the law: “And the bottom line, I think, is that I would like to convey to you, from the bottom of my heart, is that I’m a fair judge. And I think if you ask people in the 10th Circuit, is he a fair judge, you’ll get the answer you got yesterday from both Sen. Bennet and Sen. Gardner … I can’t guarantee you more than that, but I can promise you absolutely nothing less.”

That is the true Judge Gorsuch, the one that Democrats would see if they bothered to review his record. But as Mrs. Feinstein so tellingly revealed earlier today, the Democrats are not willing to do even basic due diligence to understand his record and judicial philosophy. They would rather repeat exhausted talking points from liberal activists, attack one of the foundational protections for liberty in the American system of government — the rule of law, not of judges — and grandstand to gain political points with radical progressives.

• John Ryder is co-chairman of the Republican National Lawyers Association. He practices law with Harris Shelton, Hanover Walsh in Memphis, Tenn., and teaches election law as an adjunct professor at Vanderbilt University.

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