On nukes, liars, obstructocrats and phonies: Making SCOTUS great again

Judge Gorsuch' sin: He believes the Constitution says and means what its authors, our Founding Fathers, meant for it to say and mean — and not what some liberal judge 240 years later would prefer it say and mean. 

Rabbi Prof. Dov Fischer

OpEds U.S. President Donald Trump and Neil Gorsuch
U.S. President Donald Trump and Neil Gorsuch
צילום: PR

The news that the Senate Republicans finally have effectuated the “nuclear option” for approving judicial nominees for the United States Supreme Court is wonderful.  The Democrats (hereinafter, “Obstructocrats”) forced the GOP to do it because the Hon. Neil Gorsuch proved to be so perfect a candidate for Supreme Court Justice that there could be no rational basis to deny him after all the strict scrutiny he endured.  For honest Obstructocrats, his only “flaw” could be that Judge Gorsuch is committed to a more Scalia-like approach to judicial analysis.  He believes the Constitution says and means what its authors, our Founding Fathers, meant for it to say and mean — and not what some liberal judge 240 years later would prefer it say and mean. 

Judge Gorsuch’s temperament was perfect during the hearings.  The Obstructocrats could not get the judge to lose his temper or to misspeak.  He has served with wisdom and honor on the United States Court of Appeals for the 10th Circuit for a decade, and with honor.  There were no conceivable grounds to deny him except for pure partisan liberal cynicism.  The Obstructocrats’ repeated bewailing of the Merrick Garland nonsense was a smokescreen.  Barack Obama never had any business naming a Supreme Court nominee so late in his second Presidential term, and Judge Garland set himself up for failure by agreeing to be complicit in the charade. 

We all have seen the videos of Joe Biden, Charles Schumer, and Harry Reid warning former President Bush not to nominate anyone for the Supreme Court in the final Bush year — just as we all have seen the prior videos of these same Obstructocrat liars and phonies endorsing Harry Reid’s “nuclear option” for approving federal judges for all posts except for the Supreme Court and for all other Presidential nominees.  It was they, the Obstructocrats, who broke with Senate protocol and cynically wielded political muscle when they had the numbers, and what was good for the donkey is good the elephant.

Schumer & Co. are a composite of cynical liars and phonies, two-faced and shamelessly so, and their wailing and bemoaning the Republican extension of the “nuclear option” for Supreme Court picks means nothing.  Instead, by overplaying their hands with Judge Gorsuch, the Obstructocrats now have given the Republicans the opportunity of a lifetime, opening the gates for easy passage of several more conservative justices for the Supreme Court in the foreseeable future. 

Whom the gods would destroy they first make mad — and they clearly have the Obstructocrats in their sights.  A wiser and more temperate liberal opposition would have recognized that Judge Gorsuch proved so perfect that he was untouchable, and they would have swallowed hard and accepted him, hoping to destroy the next Trump nominee.  In that way, as they destroyed Judges Robert Bork, Clement Haynesworth, G. Harrold Carswell — and almost destroyed Clarence Thomas — they could have planned for their next character assassination, bolstered by the power of the 60-vote filibuster.  Instead, they madly pressed forward against Judge Gorsuch, assuring widespread popular acceptance of a republican “nuclear option.”  Now the deed is done, and future Trump nominees will be safer, if not immune, from ever again being Borked, Haynesworthed, or Carswelled.

For me as a prudent and contemplative conservative Republican, I approached extending the “nuclear option” to Supreme Court nominees with the simple concern: “Can a GOP initiative to extend the ‘Harry Reid Rule’ to Supreme Court nominees someday come back to haunt and hurt us Republicans, as the ‘Harry Reid Rule’ now has bitten the Obstructocrats?”  And my answer is an unequivocal “No.”  There is absolutely no future downside for the GOP by “going nuclear” to adopt Judge Gorsuch onto the Supreme bench.  That safety — the assurance of no downside for Republicans — is because Republicans never filibuster Democrat SCOTUS picks, even when all conservative sanity has pleaded for them to do so.  They could have filibustered Elena Kagan or Sonia Sotomayor with some legitimate bases, but the Republicans proved incapable of doing so.  They always are incapable of heroism — and that is why so many of us conservatives supported Ted Cruz or Donald Trump over the “sensible conservatives” like Jeb! Bush. 

Because we knew, and we still know, that the mainstream Republicans always back down and chicken-out when it comes to doing something bold and daring — like keeping some of their campaign promises.  We gave then the House of Representatives, and all we heard from them was: “We need the Senate, too.”  We next gave them the United States Senate, and then came back at us with: “We need the White House, too.”  If we had elected Jeb! or one of those other mush-patties, then the Gorsuch effort would have resulted in a fiasco with the Senate GOP backing down on extending the “nuclear option” and instead, led by John McCain and Lindsey Graham, and backed a President Jeb! or Kasich, they would have reached an awful “compromise” with Nancy Pelosi and Schumer: In return for the Democrats backing Judge Gorsuch, the GOP has agreed to vote for Judge Garland when the next opening comes soon. 

That is why we picked finalists like Ted Cruz and Donald Trump, and why we ultimately voted for Trump.  And now we have Justice Gorsuch, with no “compromises” obstructing the way for the next conservative Justice.  These next few years may see seats open to replace Justices Ginzburg, Kennedy, and Breyer. And whom the gods would destroy, they, in a timely way, made mad.

Even for those not completely happy with President Trump’s first 70-plus days — and I have been very happy — the Gorsuch showdown brings home how wrong so many “Never-Trump” Republicans were when they said they preferred to elect a President Hillary. Instead, we now have Justice Gorsuch, and that that  alone justifies the entire Trump Presidency, no matter what else happens.  Otherwise, we now would have the likes of some Justice Obama.  (The Obstructocrats never were going to renominate Judge Garland if they won the Presidency.)  Justice Gorsuch’s elevation will impact everything from religious freedom, abortion-on-demand, late-term abortion, all kinds of new crazy social ideas that now are bubbling up in the universities, free enterprise, and free speech.

Who is Judge Gorsuch?

Judge Gorsuch consistently has stood with the First Amendment’s protections of religious liberty.  In Yellowbear v. Lambert, where a district court had granted summary judgment for a prison system that refused to enable a Native American inmate to utilize a prison "sweat lodge" meant for prayer and religious meditation, Judge Gorsuch wrote the appellate opinion reversing and supporting the plaintiff's First Amendment religious rights under the federal Religious Land Use and Institutionalized Persons Act (RLUIPA).

In Hobby Lobby v. Sebeliusa Tenth Circuit en banc decision later affirmed by the Supreme Court in Burwell v. Hobby Lobby Stores, Judge Gorsuch articulated why closely held for-profit corporations are deemed to be “persons” and therefore enjoy the First Amendment’s religious protections under the Religious Freedom Restoration Act (RFRA).  Thus, Judge Gorsuch allowed such private businesses to invoke their owners’ religious beliefs as enforceable legal grounds to refuse complying with Obamacare’s contraception mandate that forces employers to pay for employees’ birth control.  

After the 2015 Tenth Circuit decision that ruled against the Little Sisters of the Poor Home for the Aged in Denver, Judge Gorsuch joined unsuccessfully with other appellate judges in that circuit who would have granted the nuns a rehearing on their argument that their religious consciences prohibit them from signing a form required to opt out of Obamacare’s contraception mandate.  That group of judges wrote “When a law demands that a person do something the person considers sinful, and the penalty for refusal is a large financial penalty, then the law imposes a substantial burden on that person’s free exercise of religion.”  

In another important dissenting opinion, in Green v. Haskell County Board of Commissioners, regarding whether a county could display the Ten Commandments, Judge Gorsuch advocated a legal view that supported the county.  He pursued similar legal reasoning in American Atheists, Inc. v. Davenport, where the Utah Highway Patrol Association sought to erect large crosses on public property near locations where some of their troopers had been killed in the course of their jobs.

Under President Trump, it is impossible to pass over the new culture now promoting business, capitalism, the economy, and the glory of trying to earn lots of money and to become as rich as one can without unduly hurting others or corrupting the society.  There is a new culture protecting religious liberty and decent core American values like pride in the flag and the importance of standing with our First Responders.

Even if President Trump flubs and flops for most of the duration of his Presidency, the Gorsuch elevation to our nation’s highest court alone justifies everything we told the “Never Trumpers”: To paraphrase the Passover Haggadah: If Trump accomplishes almost nothing else, Dayenu — it is enough.

Rabbi Dov Fischer, an attorney and adjunct professor of law, is a Senior Rabbinic Fellow at the Coalition for Jewish Values, congregational rabbi of Young Israel of Orange County, California, and holds prominent leadership roles in several national rabbinic and other Jewish organizations. He has been Chief Articles Editor of UCLA Law Review, clerked for the Hon. Danny J. Boggs in the United States Court of Appeals for the Sixth Circuit, and served for most of the past decade on the Executive Committee of the Rabbinical Council of America. His writings have appeared in The Weekly Standard, National Review, Wall Street Journal, Los Angeles Times, Jerusalem Post, American Thinker, Frontpage Magazine, and Israel National News. Other of his writings are collected at www.rabbidov.com .