Gorsuch and Precedent: Democrats Want It Both Ways

The Senate Judiciary Committee questioned Supreme Court nominee Neil Gorsuch in public hearings over the last two days. It was evident his equanimity was frustrating to Democratic senators as they attempted to turn up the heat and expose him as a puppet of President Trump and the conservative right. What was also apparent was their frustration with Mr. Gorsuch’s refusal to avow select favored SCOTUS decisions as untouchable.

The doctrine of stare decisis is interpreted as SCOTUS giving previous Supreme Court rulings due consideration and respect while deciding cases. It is a judicial working doctrine meant to assure Americans their highest court’s decisions will have staying power, and therefore life decisions can be made without fear of sudden tumult or massive upheaval.

However, as George Will notes in his recent article, the court does not consider stare decisis to be ironclad: (WaPo):

“Chief Justice John G. Roberts Jr. says the doctrine of stare decisis — previous court decisions are owed respect — is not an “inexorable command.”

For liberal Democrats, Gorsuch is their worst fear realized. They are convinced he will don a black robe, take his seat and promptly begin the work of overturning their most beloved SCOTUS rulings. Even the leader of the pro-abortion organization NARAL is convinced (PBS):

Abortion rights groups immediately criticized the nomination, saying Gorsuch represents a threat to women’s reproductive rights and to the landmark Roe v. Wade Supreme Court decision legalizing abortion nationwide in 1973. “With a clear track record of supporting an agenda that undermines abortion access and endangers women, there is no doubt that Gorsuch is a direct threat to Roe v. Wade and the promise it holds for women’s equality,” NARAL Pro-Choice America President Ilyse Hogue said in a statement.

Senator Diane Feinstein D-CA wasn’t swayed by Mr. Gorsuch’s stated commitment to giving precedent due consideration, and during her time at the microphone decided to up the ante. From precedent to super precedent. Stare decisis to maxima stare decisis. (Townhall):

A day after sharing her unique view of our “evolving” Constitution, Sen. Dianne Feinstein (D-CA) wanted to know where Supreme Court nominee Neil Gorsuch stood on the issues of abortion and enhanced interrogation techniques on day two of his confirmation hearings. We don’t have much to go on regarding Gorsuch’s views on these hot button issues, so the senator hoped her line of questioning could bring them to light. “Was Roe v. Wade, the 1973 court ruling which gave women the right to abortion, decided correctly?” Feinstein asked.

It is liberal doctrine that Roe v. Wade is a landmark untouchable case, akin to Brown v. Board of Education. A case of such national import that SCOTUS cannot begin to contemplate overturning it. The problem with that thinking is that a landmark case should have the nation’s overall acceptance and approval. Roe v. Wade doesn’t come close to that formula. That didn’t stop Sen. Feinstein from pushing Judge Gorsuch on the issue, or asserting her belief that that the case had super precedent status.

During the Wednesday hearings, a Supreme Court decision came out overturning a Judge Gorsuch opinion concerning public schools and their responsibility to children with disabilities, Thompson R2-J School District v. Luke P.  Sen. Dick Durbin D-IL continued the verbal assault on Mr. Gorsuch excoriating him for his stance on this case, (Politico):

“It’s a powerful decision, it’s a unanimous decision, it was written by the chief justice of the court,” Durbin said. “Why in your early decision did you want to lower the bar so low?”

Judge Gorsch’s reply was both forceful and perhaps telling about how he will treat precedent once seated on the highest court in the land (Politico):

Gorsuch responded that he is often asked whether he abides by precedent and doesn’t always like the rulings he reaches. “Here’s a case for you,” he said. “If anyone is suggesting that I like a result where an autistic child happens to lose, that’s a heartbreaking accusation to me. Heartbreaking. But the fact of the matter is I was bound by circuit precedent,” Gorsuch continued. “I was wrong because I was bound by circuit precedent and I’m sorry.”

The Democrats questioning Neil Gorsuch wanted it both ways. Defend our favored precedents, but; understand we are going to drag you through the mud when you choose precedent over deciding to our favor.

To his credit, Justice Gorsuch repeatedly give his allegiance to the doctrine of stare decisis while not endorsing it as inviolate. But perhaps he gave them his own shot across the bow. Perhaps Sen. Durbin will come to regret this particular line of questioning. Perhaps the good judge was telling them,

“You’re right. I was wrong in following circuit court precedence while making that decision. But I’m putting you on notice, precedence be damned, I’m not going to make that mistake again.”

Maybe thats what he was saying, maybe not; but no matter. After two days of public hearings, conservatives can be exhilarated in his ascension to SCOTUS. He will indeed serve America faithfully.

About the author

Wm. P. Fitzhenry

5th generation Texan, 2nd generation reformed Presbyterian, a twin and a serial entrepreneur.

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