The Senate confirmation hearings for Judge Neil Gorsuch, President Donald Trump’s nominee for the U.S. Supreme Court, were alternately dispiriting or inspiring for viewers who support the jurist and pray he will survive the gauntlet intact.
It was painful to watch Gorsuch as he listened patiently to an interrogator’s rant, but it was energizing to hear his response to tough questions about his judicial independence and originalist jurisprudence.
When Sen. Patrick Leahy, D-Vermont, bluntly asked how he would rule in a case involving Trump, Gorsuch replied: “Nobody is above the law in this country, and that includes the president of the United States.”
He smoothly deflected another senator’s question about his position on Roe v. Wade. And when another lawmaker noted his appellate court ruling in favor of Hobby Lobby’s legal challenge to the Health and Human Services’ contraception mandate, and then suggested the decision revealed Gorsuch’s tendency to favor business interests over the “little guy,” the judge calmly disputed this assertion.
His opinion was properly grounded in a 1993 law enacted by Congress — the Religious Freedom Restoration Act. If Congress wished to produce a different outcome, it was its responsibility to change the law.
“The judge’s job is to follow the words that are in the law, not replace them with those that aren’t,” he said.
That statement served as an implicit repudiation of the judicial philosophy advanced by most of his opponents on the Senate Judiciary Committee. They see the Constitution as a fluid, “living document,” which inspires the creation of new rights, such as the right to privacy that was extended to include abortion, affirmed in Roe, and also allows for the demotion or redefinition of other rights specifically affirmed by the Founding Founders, like religious liberty.
Amid the political theater that has become an expected feature of the Senate confirmation hearings for Supreme Court nominees, the embattled jurist offered an important message that is worth pondering.
“[F]or all of its imperfections, I believe that the rule of law in this nation truly is a wonder, and it is no wonder that it is the envy of the world,” said Gorsuch.
At another point in the hearings, he added that Americans must not take this remarkable system “for granted.”
No doubt, our political freedoms and economic opportunities — secured by the courts — continue to inspire tens of thousands of applicants to immigrate to this country and many others to embark on a treacherous journey across our borders to begin life anew.
But the angry, fractured atmosphere of the hearings should prompt a sense of foreboding in our jaded world. For the hearings are surely a microcosm of our nation, which has lost its moral compass and is straining to find common ground, with little regard for the truth of things.
Thirty years have passed since partisan opponents successfully framed Judge Robert Bork, President Ronald Reagan’s nominee for the Supreme Court, as an extremist.
“Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, and schoolchildren could not be taught about evolution,” Sen. Edward Kennedy, D-Massachusetts, warned from the Senate floor before Bork’s Sept. 15, 1987, confirmation hearing had even begun.
Many Americans were dismayed by the gross misrepresentation of Bork’s originalist jurisprudence.
Yet Kennedy’s polemic served as a blueprint for future campaigns against other Supreme Court nominees who took a dim view of Roe. In his speech, Kennedy sought to tarnish Bork’s critique of Roe by equating the legalization of abortion with important, groundbreaking civil-rights advances that ended racial segregation in the Jim Crow South.
Yet the heated rhetoric ignored an inconvenient truth: Legal abortion violates the inalienable rights and dignity of each human person, the foundation of all civil-rights protections.
Abortion-rights advocates have also embraced the tortured logic of the 1992 landmark Supreme Court decision on abortion, Planned Parenthood v. Casey. There, legal abortion is grounded in a new definition of liberty, described as “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
This radical vision of individual autonomy, a form of moral relativism, is offered as a fundamental good to be defended by the courts.
And since Casey, advocates for same-sex “marriage,” “transgender rights” and assisted suicide have also marched under the banner of personal autonomy.
As we reflect on these developments, we should not be surprised by the deep divisions now on display at the Senate hearings or by the intense partisanship that made the 2016 election cycle a memorably painful process.
An ethos of radical autonomy can only drive people farther apart.
And its impact is even more damaging because it has been accompanied by a steady decline in religious faith and practice — the glue that once cemented the bonds of civil society and set moral norms.
Already, there are worrying signs that the transmission of democratic values is breaking down.
On college campuses, protesters bar speakers who challenge progressive policies, and there has been a small, but disturbing, increase in the use of violence to suppress unpopular opinions.
Yet our American experiment in self-government depends on civil, rational discourse and the exercise of freedom rightly understood. It cannot flourish — and, ultimately, it cannot survive — in a regime that defends lies and intimidates truth-tellers.
“Children lie to hide the bad things they have done,” explains Anthony Esolen in his new book, Out of the Ashes: Rebuilding American Culture. “So does everyone else.”
Looking ahead, we have reason to hope that Neil Gorsuch, an excellent, morally grounded jurist who will serve our nation with distinction, will be confirmed.
But we cannot slide back into complacency. More than ever, Americans must look for opportunities to overcome partisanship and work together to uphold and secure the vital institutions that have been placed in our care.
Meanwhile, our larger — and, ultimately, more important — mission is to expose the lie that has divided our nation and poisoned its soul: the lie that legal abortion is a good to be defended, no matter the cost to innocent human life or the moral fabric of our nation.