With the nomination of Federal Appeals Court Judge, Neil Gorsuch, a difficult decision lies in front of Democrat Senators. Do they oppose his confirmation at all costs or do they object but in the end allow him to be confirmed? And more to the point, why in either case?
Judge Gorsuch claims to be someone who interprets the Constitution as the framers intended and reads laws in the context of how they were created, not how they would impact the future. Judge Gorsuch as been described as “Scalia-esq” without the bombastic-ness Antonin Scalia employed. So does Judge Gorsuch deserve a hearing?
It should be very understandable if Democrats chose a “tit for tat” response reflecting Mitch McConnell’s decision to not even give hearings to Merritt Garland. On this basis alone, a logical refusal to confirm could be based.
Over time, however, political sentiment shifts back and forth from conservative to progressive and back. It should therefore not be overlooked that in the future as the recent past, progressives have been nominated. (Judge Garland’s treatment, unfortunately, hurts this argument). Never the less, a complete stonewall of Gorsuch would only serve to dignify McConnell’s dysfunctional behavior.
Assuming there is a hearing, what questions should be asked? And what type of answers will indicate Judge Gorsuch is not “out of the mainstream”?
Judge Gorsuch calls himself an “originalist” in the Antonin Scalia mold. Questions around social issues and religious rights represent places where (IMO) “originalists” are the furtherest out on the limb and may be seen as out of the mainstream.
For example, supporting the Little Sisters of the Poor’s or Hobby’s decision not to provide all of Obamacare’s benefits to women for religious reasons runs dead smack into the 14th Amendment (equal protection). The Affordable Care Act required no one to use any birth control method, ACA simply made it available to any woman who so chose. Does Judge Gorsuch believe exercising religious liberty can over ride the 14th Amendment?
Another social issue involves individual gay rights such as employment discrimination and same sex marriage. Does freedom of religion allow someone with “deeply held religious beliefs” to fire or refuse to hire someone, or to withhold services to a customer on the basis of sexual orientation?
And of course, does any government have the right to interfere with a women’s choices on her reproductive health, and by extension, does a person with deeply held religious views or any religious institution have standing in denying any women such rights?
Judge Gorsuch’s beliefs in other areas such as tort, tax, and corporate law, while important, are less relevant since the Judge’s opinions are well known to be the conservative side.
It is instead the social issues which are dividing the country and are not to be found in thoughts of our founding fathers.
A simple principle might be, “believe what you want, live personally your beliefs, do not require others to follow your beliefs”.
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