March 20, 2017
Senate Minority Leader Chuck Schumer, D-N.Y., last Wednesday dragged out his feeble effort to block Neil Gorsuch’s confirmation to the Supreme Court. Ahead of today’s confirmation hearing, he trotted out three people, representing supposed “victims” of Gorsuch’s jurisprudence. He hoped to demonstrate that Gorsuch is hostile toward workers and cancer patients, and takes the side of “the powerful” and corporations against the “powerless” little guy.
Never mind that in all three cases, one of which was decided unanimously by a three judge panel that included one of former President Bill Clinton’s appointees, Gorsuch scrupulously applied the text of the laws as written by the Congress in which Schumer serves. Schumer just didn’t like the outcomes or, to be more precise, he hopes the outcomes might be sufficiently tear-jerking that they can inflict damage on the judge’s chances of confirmation. He feels pressure from his party’s left wing to make a show of resistance against Gorsuch’s nomination, which seems likely to be smooth sailing.
Schumer’s disingenuous behavior is typical of his treatment of conservative judicial nominations. Fifteen years ago, under a previous Republican administration, he tried to create a religious litmus test for circuit court nominations, using the thinly coded phrase “deeply held personal beliefs” to justify a years-long filibuster against a number of well-qualified judges who deserved much better. Most of those nominees were confirmed when rational, cooler heads prevailed.
But aside from his personal behavior, Schumer’s attempt last week to impose the tyranny of anecdote on the judiciary evinces a hopelessly distorted and corrosive idea of what law is.
It’s true that laws often protect “little guys” from “big guys,” and there are several noteworthy cases where Gorsuch has taken on the role of upholding little guys’ rights. But, he also recognizes that we are all supposed to be equal before the law, so the law should not always side with the little guy. It is there to protect everyone, not just Schumer’s favored classes. Gorsuch hasn’t ruled for the smallest guy in the room in every case, because the law is not about “big” versus “little.” It is about legal versus illegal. Especially at the Supreme Court level, decisions are often about the simple but momentous question of whether laws are compatible with the U.S. Constitution and the Bill of Rights.
Schumer’s ideological language attempts to obscure the fact that the wealthy and powerful have the same rights to the law’s protection and consistent application as do the poor and powerless.
Even believers in smaller government understand that “the little guy” shouldn’t always win against the biggest guy of them all. the federal government. Schumer demonstrably does not believe this either. We searched in vain for his complaints about the unjust decision in Kelo v. New London, in which Justices Steven Breyer and Ruth Bader Ginsburg, with three others, rubber-stamped a city’s right to take away the homes of small landowners and hand them over to a private developer, who subsequently abandoned the site. Schumer is a proud supporter of judicial activism.
Nor has Schumer shown any serious commitment to little-guy law in his legislative career. In 1999, he proposed an amendment to a bankruptcy bill that was specifically designed to harm peaceful pro-life protesters then facing a hundred-million dollar judgment in a civil lawsuit brought against them by the abortion industry. Schumer’s amendment would have prevented them from declaring bankruptcy in order to avoid paying the full amount in a lawsuit clearly aimed at stopping their protected First Amendment activities, because their protests were supposedly harming the industry’s bottom line.
Schumer’s amendment didn’t pass, and the protesters won their case with a unanimous Supreme Court decision. But Schumer showed that he doesn’t mind sticking it to any little guy whose political opinions he dislikes. In fact, he seems to relish in it.
Schumer’s chosen role as demagogue stands in stark contrast to what is demanded of judges and can be expected of Gorsuch. Judges and justices are charged with upholding the Constitution and applying justice fairly to everyone. Most of them, liberal or conservative, would never endanger the rule of law with careless comments like those Schumer has made in longstanding and unsuccessful efforts politicize the judiciary.
In the end, politicians such as Schumer are the best reminder that we need more judges like Gorsuch.