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4 Worst Moments For Democrats From Their Judicial Hearings on Gorsuch

By  Elliott

On Monday, the Senate Judiciary Committee started its confirmation hearings for Judge Neil Gorsuch to replace the late Justice Antonin Scalia on the Supreme Court. Naturally, the Senate Democrats on the committee decided to make it a spectacle to appease their base and virtue-signal in front of the camera. Here are some of the worst instances where Democrats made complete fools of themselves:

1. Democrats did not shut up about Merrick Garland

While Republicans talked about how they look forward to asking Judge Gorsuch substantive questions of law, many Senate Democrats wasted no time in lamenting over the failed nomination of Judge Merrick Garland to replace Scalia during President Obama’s last year in office. Several Democrats mentioned Judge Garland in their opening statements:

Sen. Diane Feinstein (D-CA):

We’re here today under unusual circumstances. It was almost a year ago today that President Obama nominated Chief Judge Merrick Garland for this seat. Unfortunately, due to unprecedented treatment, Judge Garland was denied a hearing and this vacancy has been in place for well over a year. I just want to say I’m deeply disappointed that it is under these circumstances that we begin our hearings.

Sen. Patrick Leahy (D-VT):

Today marks the first time the Senate Judiciary Committee has met publicly to take action on the Supreme Court vacancy that resulted from Justice Scalia’s death thirteen months ago because just hours after we learned of Justice Scalia’s sudden passing, the Republican majority leader [McConnell] declared that the Senate would not provide any process to any nominee selected by President Obama, despite the President having a year left in his term. This was an extraordinary blockade. It was totally unprecedented in our country’s whole history… Now Republicans are guilty of their own court unpacking scheme, and the blocking of Chief Judge Merrick Garland was never grounded in principle or precedent.

Sen. Chris Coons (D-DE):

I cannot let this moment, in commenting on the best tradition of the Senate, pass without expressing my deep regret that Chief Judge Merrick Garland was treated with profound and historic disrespect. The disrespect shown by Senate Republicans to Chief Judge Merrick Garland and to President Obama and to our institutitons was unprecedented and deeply damaging. For nearly 300 days, longer than any other nominee, Chief Judge Garland’s nomination to the Supreme Court sat without action. My Republican colleagues did not afford him a hearing and would not give him a vote.

It is important to note, however, that Leahy’s claim that the blockade was “unprecedented” is not accurate. On December 17, 1828, President John Quincy Adams nominated John Crittenden to the Supreme Court to replace Justice Robert Trimble. However, according to Richard Beth of the Congressional Research Service, the Jacksonian Democrat-controlled Senate postponed a vote on his confirmation, effectively killing Crittenden’s nomination upon Andrew Jackson’s inauguration to the presidency. Nevertheless, the modern Democrats love beating the same dead horse to rally up their base.

One can hope this confirmation hearing will be the end of the Garland saga.

2. Sen. Dianne Feinstein beat the straw man on “originalism”

The senior senator from California has a penchant for arguing for gun control laws that would violate both the Second, Fifth, and Fourteenth Amendments. It was no surprise that she spent her opening statement on Gorsuch’s first day of confirmation hearings misconstruing constitutional originalism. She said:

Judge Gorsuch has also stated that he believes judges 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. In essence, it means that judges and courts should evaluate our constitutional rights and privileges as they were understood in 1789. However, to do so would so would not only ignore the intent of the Framers, that the Constitution would be a framework on which to build, but it severely limits the genius of what our Constitution upholds.

She also stated that believing in originalism means wanting to go back to the days where “we would still have segregated schools and women wouldn’t be equally protected under the law” and that originalists want to see slavery again. Subsequently, she implied that the Constitution is a “living document” intended to be changed at the will of those who do not agree with the supposedly “outdated” views of the supreme Law of the Land. This is asinine because originalism also accepts the various amendments to the Constitution outlawing slavery and discrimination against women at the voting booth, as the text of the amendments clearly state. It is also living insofar as its rule and its supremacy remain true to this day.

3. Feinstein and Franken Complained About Gorsuch’s Opposition To The Chevron Rule

Sen. Feinstein also defended the “Chevron rule,” which gives administrative agencies deference on how to interpret regulations in the courts. Gorsuch has demonstrated that he is against it, and Feinstein lamented that:

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.

Feinstein worries that Gorsuch’s opposition to Chevron deference would overrule executive power through administrative agencies. This would be great news because it means that Congress has more say over what laws and regulations should either stay or go according to a constitutional lens.

Sen. Franken (D-MN), the former comedian masquerading as a U.S. Senator, also used his opening statement to passionately defend the administrative state. Implying that Justice Scalia also upheld the Chevron deference rule, Franken argued that Gorsuch’s belief that Chevron should be questioned is problematic:

Now, administrative law can be an obscure and sometimes complicated area of the law, but for anyone who cares about clean air, or clean water, or about the safety of our food and of our medicines, it’s incredibly important, and [the Chevron doctrine] simply ensures that judges don’t discard an agency’s expertise without good reason. Justice Scalia recognized this to be true. But for those who subscribe to President Trump’s extreme view, [the Chevron doctrine] is the only thing standing between them and what the President’s chief strategist Steve Bannon called the ‘deconstruction of the administrative state,’ which is shorthand for gutting any environmental or consumer protection measure that gets in the way of corporate profit margins.

Like Sen. Feinstein, Franken does not believe that the executive branch should cede its extensive power back to Congress, which has an enumerated power in Article I of the Constitution to create laws that the President can either sign or veto through the bicameral process.

4. Sen. Sheldon Whitehouse (D-RI) Slams The Second Amendment

The junior senator from Rhode Island used his opening statement to slam Gorsuch for supposedly representing “big corporations” while also taking shots at textualism and the Second Amendment.

The Court also helps big business against unions: Harris v. Quinn, 5-4, all Republicans. Last year, Friedrichs was teed up as a 5-4 body blow against unions, when Justice Scalia died. With a new 5-4 Court, they’ll be back.

Throw in Hobby Lobby: Corporations have religious rights that supersede health care for their employees, 5-4, all Republicans.

Add Heller and McDonald, reanimating for gun manufacturers a legal theory a former Chief Justice once called a “fraud”, 5-4, all Republicans.

This 5-4 rampage is not driven by principle. Over and over, judicial principles – even so-called “conservative” ones – are overrun on the Court’s road to the happy result.

Stare decisis: That’s a big laugh. These were law-changing decisions, many upending a century or more of law and precedent.

Textualism: The Second Amendment uses the military term “arms” and talks about militias, but never mind that when the gun lobby wants something.

Returning to the same tired Democratic talking points about “big corporations” and the “gun lobby,” Sen. Whitehouse revisited the same scorn that his party holds to the individual’s right to keep and bear arms. The ridiculous claim that Gorsuch cares more about corporations than the individual was also shared by Sen. Elizabeth Warren (D-MA), who announced she opposes Gorsuch for those reasons.

Of course, Democrats did not complain when a Supreme Court majority, joined by Justices Ginsburg, Breyer, and Kennedy voted in favor of Kelo v. City of New London, which held that a city taking private land from individuals to assist a corporation was legal under the Fifth Amendment. Originalists view that ruling as an abomination. Look no further than Justice Thomas’ epic dissent.

Hypocrisy reeks within the Democratic Party, especially those on the Senate Judiciary Committee who finally decided to talk about integral aspects of the Constitution like separation of powers and executive overreach.

Follow Elliott on Twitter and Facebook.

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