On the first day of the confirmation hearing for President Trump’s pick to fill Justice Scalia’s seat on the Supreme Court, Senate Judiciary Committee Ranking Member Diane Feinstein (R-Calif.) used her time to gin up as much fear as possible about Judge Neil Gorsuch.
However, in trying to cast aspersion on Gorsuch’s philosophy and his case history, the senator did little more than offer a list of things to reassure those who voted for Trump based on the Supreme Court that they made the right decision.
For instance, take her opening mission statement:
Our job [as Democrats] is to determine whether Judge Gorsuch is a reasonable, mainstream conservative, or is he not.
This is from the same senator who stated that she was “deeply concerned” about Trump’s alleged use of a litmus test for the appointee just a few weeks ago. So she’s accusing Donald Trump of corrupting the system by imposing a litmus test, by responding with her own litmus test? Give me a break.
Feinstein goes on:
Our job is to assess how this nominees and decisions will impact the American people and whether he will protect the legal and constitutional rights of all Americans. Not just the wealthy and the powerful.
If you look through the “rights” to which Feinstein refers in her opening statement, all of the ones that she says she fears for were manufactured by progressives in the 20th century. (She was right about slavery being an affront to liberty, but that’s a slow pitch.)
Fake rights are a much bigger problem than fake news. Often judges find themselves in situations where real rights run up against fake ones i.e., the right to practice your religion versus the “right” to not have your feelings hurt by a Christian baker. The question at hand is whether or not a nominee will be faithful to the Constitution and the “inalienable rights” it actually defends.
We hold these hearings because the United States Supreme Court has the final word on hundreds of issues that impact our daily lives.
No. No, it does not. That’s not what the founders envisioned or what they designed. The American people have that power either via constitutional amendment or the limitation of the court’s jurisdiction and the existence of the federal circuit system. At the end of the day, the final words belongs to the “we the people” mentioned in the preamble to the Constitution, not the courts they establish in Article III.
Sen. Feinstein went on to defend the existence of the Chevron Doctrine, a legal concept in administrative law that gives a tremendous amount of regulatory power to federal agencies over that of Congress:
In another case, Judge Gorsuch wrote a separate opinion, this time to challenge a long-standing legal doctrine that allows agencies to write regulations necessary to effectively implement the laws that Congress passes and the president signs. It's called the Chevron Doctrine. This legal doctrine has been fundamental to how our government addresses real-world challenges in our country, and has been in place for decades. If overturned, as Judge Gorsuch has advocated, legislating rules are very difficult. In fact, Congress relies on agency experts to write the specific rules, regulations, guidelines, and procedures necessary to carry out laws we enact.
So Feinstein admits that Congress has handed over its lawmaking ability to unknown, unelected technocrats who grew federal regulations to record levels under President Obama, and then defends this arrangement as good because fulfilling her constitutional duty to legislate is “difficult.”
Laws and regulations are supposed to be hard to pass, as that keeps the government from over-regulating businesses and over-criminalizing citizens into oblivion. That’s a feature, not a bug of our constitutional structure.
How is that not a diagnosis of a problem that desperately needs to be fixed? In fact, didn’t a guy just win a presidential election on promises of confronting and stripping away the technocratic “swamp” in Washington, D.C.?
Gorsuch’s professed legal philosophy might be troubling to those on the Left, but not the people who elected his appointer.
The incoherence continued into the ranking member’s comments about one of the hottest topics surrounding the nomination process: abortion laws.
“The debate over Roe v. Wade and the right to privacy, ladies and gentlemen, is not theoretical,” she said, throwing in all the typical euphemisms about “women’s health” and leaving it to “women and their doctors to decide what’s best” when it comes to the taking of an unborn life.
First off, the “right to privacy” to which the Senator is referring is nothing more than a license to abortion in this case, a “right” which justice Scalia argued simply doesn’t exist. But it does have real-life consequences, making Feinstein’s point that it is “not theoretical” correct – at least on its face.
In fact, the decision has had deadly consequences for the nearly 60 million children who have been killed in utero since 1973. When American voters went to the polls, the ramifications of President Trump’s Supreme Court nominee on these children was a driving issue in the 2016 election.
So no, the debate over Roe v. Wade is not theoretical; but it was a key factor in why Senator Feinstein’s party lost in November.
Judge Gorsuch has stated he believes they should look to the original public meaning of the Constitution. When they decide what a provision of the Constitution means. This is personal. But I find this originalist judicial philosophy to be really troubling.
This straw man fear of those in the “living document” camp deserves its own, separate piece, but suffice it to say that this is the exact kind of philosophy which put Gorsuch in the hearing seat in the first place. During the campaign, then-candidate Trump promised to appoint judges who would interpret originalist judges who — like Scalia — believe the Constitution means what it says. Gorsuch’s professed legal philosophy might be troubling to those on the Left, but not the people who elected his appointer.
Senator Feinstein may try to use her position on the Judiciary Committee to whip up fears over Neil Gorsuch all she wants, but all she has done so far is run down a litany of why he made it to the hot seat in the first place.
Nate Madden is a Staff Writer for Conservative Review, focusing on religious freedom, immigration, and the judiciary. He previously served as the Director of Policy Relations for the 21st Century Wilberforce Initiative. A Publius Fellow, John Jay Fellow, Citadel Parliamentary Fellow and National Journalism Center alumnus, Nate’s writing has previously appeared in several religious and news publications. Follow him @NateMaddenCR and on Facebook.