Democrats tell Americans that all they want from a Supreme Court judge is empathy for people whom the Democrats regard as “little guys.” But they don’t want empathy; they want results, of two kinds.
First, they want federal judges to make decisions favoring “the little guy.” Second, they want a judge who will overturn Supreme Court precedents that adversely affect the “little guys.” Their continual rant about the court’s supposed bias against the “little guy” encourages the public to disrespect the court, its decisions, and the law. Democrats thus undermine the judicial branch of our government, undermining America.
To Prove It, Just Look at Neil Gorsuch’s Confirmation
We have only to look at the hearing the Senate Judiciary Committee conducted in March 2017 on the nomination of Judge Neil Gorsuch of the U.S. Court of Appeals for the Tenth Circuit for the U.S. Supreme Court. The committee voted 11-9 on April 3 on a straight-party vote.
The biographies of the nine Democratic senators on this committee would make it seem that they, certainly more than most American citizens, have been steeped in American law, government, and the Constitution. Five of the nine majored in political science. Seven attended law school. Four were prosecutors. One was a mayor and one a governor.
For the upcoming hearing on Brett Kavanaugh to replace Justice Anthony Kennedy, Sen. Al Franken has left office, and Democratic Sens. Kamala Harris and Cory Booker are now on the committee. Both majored in political science and attended law school. Booker was a mayor. Harris was a prosecutor. I provide representative quotations from the Democratic senators during Gorsuch’s hearing to indicate that their interests are not justice, but the opposite.
Sen. Dianne Feinstein: “Whether [Gorsuch] will protect the legal and constitutional rights of all Americans—not just the wealthy and the powerful…a woman…poor people, people of color, seniors and younger people…workers… How do we have confidence in you that you won’t just be for the big corporations, that you will be for the little men?”
Sen. Patrick Leahy: “The court has a profound impact on small businesses and workers, law enforcement and victims, and families and children across America. It is not contrary to the duties and obligations of a Supreme Court Justice to consider the effects of their rulings… If confirmed, you must be a justice for all Americans, not for the special interests of a few…”
Sen. Dick Durbin: “‘We the people’ does not include corporations… In case after case, you have dismissed or rejected efforts by workers and families to recognize their fights or defend their freedoms in court against businesses… [You favored] corporations and employers and special interest elite…over workers, consumers, people with disabilities and victims of discrimination.”
After Sen. Sheldon Whitehouse cited a number of 5-4 decisions that he argued were all partisan and biased for corporations, and after he referred to the “Republican politico-industrial complex,” he said: “A 2014 poll revealed that a majority of Americans think a person won’t get a fair shake in this court against a corporation…”
Sen. Amy Klobuchar: “Whether your judgments and decisions would in fact reflect a respect for precedent and the law and how they would affect all Americans [referencing a grandmother and a grocery store worker].”
Franken: “Whether [you] will unfairly favor corporate interests over working families or limit the ability of Minnesotans to get their day in court….This is about confirming a nominee who would guarantee 40 years, 40 more years, of 5-4 decisions favoring corporations over workers and consumers, preventing Americans from getting access to the courts…”
Sen. Richard Blumenthal, regarding Supreme Court precedents: “He has left us with substantial doubt [as to whether he’d adhere to them].”
Sen. Mazie Hirono: “I have not seen that the rights of minorities are a priority for you. In fact, a pattern jumps out at me, you rarely seem to find in favor of the ‘little guy.’ …The working families, women, people of color, the LGBT community, immigrants, students, seniors, native peoples—these are the people who will be impacted by the decision a Justice Gorsuch would make… [Judge Gorsuch has] a pattern of being on the side of corporations and against the side of individuals…”
What’s With This Supposed Empathy for the ‘Little Guy’
When the Democrats say empathy, they don’t mean that judges must manifest sympathy towards, an emotional concern for, or an understanding of, the parties’ plight. Neither do they mean that a judge should extend certain courtesies, or act in a civil manner, toward parties or to their lawyers. (The last is already required by the code of conduct for judges.)
If they meant empathy, the Democratic senators would have heard, and approved of, the empathy Gorsuch had shown as a federal judge of the Tenth Circuit when, as both the nominee and witnesses on his behalf testified, he wrote opinions in language that the parties, not just their lawyers, would understand, and treated their lawyers’ oral and written arguments with respect, each receiving careful attention.
This Democratic vision for an American judiciary that would favor the “little guy” cannot withstand inspection beyond the Democratic platitudes. In their view, in deciding a case a judge is obliged at the outset to take a good, hard look at the identity of the parties: their sex, sexual orientation, ethnicity, citizenship, religious affiliation, education, age, employment history, corporate status, income, place of residence, political affiliation, union membership—historical victimhood generally.
These factors will help a judge determine how the wind is blowing, which types of parties before them will be on “the right side of history.” Supposedly this should guide their decisions, not the law, and not justice. Yet how should a judge determine whether a party is a “small” or “large” business, or a “rich” or “poor” consumer or patient or employee, or is Native American? For example, how much ancestry makes one Native American? White? African-American? Vietnamese?
If We Decide Based on Identity, the Results Are Horrific
The law establishes expectations in a relationship. Under the Democratic vision for the American judiciary, why would a white male enter into a contract, of any sort, with an African-American female if he would expect that he would lose any lawsuit for her breach? Do we go from a time when a white male is always to be believed against a female of any color to a time when a female suing or being sued by a male is always right?
This system of “identity justice,” which all Americans who adhere to the U.S. Constitution would not call justice, has been used in other countries. I’ll name three, although there are many: the Soviet Union, Communist China (for example, the new “social credit system”), and Communist North Korea (the songbun apartheid). In all countries, this system was a horrific disaster.
Consequently, many throughout history have argued against considering identity rather than the truth and the law in making judicial decisions. In the 1966 film “A Man for All Seasons,” Sir Thomas More argued with William Roper that he, More, would be willing to protect the Devil, the ultimate “bad guy,” from the good guy if that is what the law provided. St. Augustine worked part of each day as a civil judge, and exhorted his congregation that judges should not take bribes in the form of good opinion, even from poor litigants.
The Senators Proved They Don’t Care about the Law
Just prior to his nomination, Gorsuch had co-authored a 900-page book entitled “Law of Judicial Precedent” (2016). The book was not a collection of chapters by individual authors. Rather, the nominee and his 12 co-authors, state and federal judges, Democratic and Republican, including Kavanaugh, all signed on to all of the contents of the book.
Thus, the senators could have explored with Gorsuch any aspect of the law concerning judicial precedent. For all of their professed interest in determining whether Gorsuch would follow a host of Supreme Court precedents, they showed no interest in the identities of the co-authors or the arguments or analysis in a book that was the first lengthy treatise on important subject in more than 100 years.
The senators will have another opportunity during the confirmation hearing with another co-author: Kavanaugh. Don’t expect them to make the most of it, however. They’ve already proven their interest lies elsewhere.
Gorsuch Fought for People’s Access to Legal Services
The Democrats also paid no mind to three of Gorsuch’s initiatives to improve access to the legal system and the courts, because these did not conform to their narrative. These include enhancing the Seventh Amendment right of a plaintiff in a civil case to a trial by jury; ensuring that people have notice of law before being deprived of life, liberty, or property; and allowing people to major in law in college, dropping the requirement of law school degrees, which would free lawyers from massive debt for their education so they could represent people of modest means.
Gorsuch’s views on equality before the law for all persons, expressed constantly during the hearing, are also reflected in his April 17, 2017, opinion in Sessions v. Dimaya in which Gorsuch concurred with justices Elena Kagan, Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor against justices John Roberts, Anthony Kennedy, Clarence Thomas, and Thomas Alito and against the U.S. government, because “Vague laws invite arbitrary power.” They are an unconstitutional delegation by the legislature to both the executive and judicial branches of government.
In sum, all Americans must reject identity justice, the Democratic vision for the American judiciary. It violates bedrock American values: the rule of law and the U.S. Constitution. It is not equal justice. It is not blind justice. It is not justice at all.