Ronald A. Cass

Smart people often say stupid things. #MistakesHappen. But it takes a certain special orientation to repeat obviously false and ridiculous statements over and over. That’s a talent peculiar to politicians.

This talent is frequently on display during Supreme Court confirmation fights. Since the 1970s, every nominee from a Republican president has been attacked, among other things, as hostile to women’s rights and civil rights.

That includes Harry Blackmun, John Paul Stevens, Sandra Day O’Connor, Anthony Kennedy and David Souter — justices who often have been as zealous as any in finding, creating and expanding rights for women and minorities. Constantly being wrong, however, doesn’t prevent the same trope being trotted out as soon as the next nominee is announced.

Opening statements from Democratic senators during the Supreme Court confirmation hearing for Judge Neil Gorsuch didn’t disappoint in absurdly trying to paint the nominee as a tool of corporate America and an enemy of “the little guy.”

Sen. Mazie Hirono, D-Hawaii, wasted no time in lashing out before Gorsuch had a chance to utter a single word: “A pattern jumps out at me. ... You consistently choose corporations and powerful interests over people.”

Likewise, Sen. Al Franken, D-Minn., weighed in with more of the same: “I fear confirming you would guarantee more ... decisions that continue to favor powerful corporate interests over the rights of average Americans.”

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A newer attack line for liberal critics is that a judicial nominee favors big interests, employers, people with money — anyone in conflict with the little guy. Sen. Ted Kennedy, scion of wealth and privilege, used that line against nominee Sam Alito, a man whose background, family and experience gave him ample affinity with ordinary life and people.

Kennedy’s successor, Sen. Elizabeth Warren, has reached for the same trick in attacking Gorsuch. She claims he “has sided with employers who deny wages,” “sided with employers who denied retirement benefits to their workers,” and “sided with big insurance companies against disabled workers.”

Despite the cartoon-version descriptions of a judge who "has sided" with the wrong people, the judge’s job isn’t to choose David vs. Goliath, to stand up for the little guy, to smack down the big guy.

The way little guys get protected isn’t to have a judge who votes on his or her gut sympathies. Instead, it’s to have a legal system that functions according to rules, legitimately enacted by constitutionally appropriate bodies and procedures, enforced in principled, predictable ways by judges who read the law carefully and apply it as written, no matter what the judge feels about the people on either side of the case.

Despots want judges who make decisions based on who is helped or hurt. Making decisions on the basis of principles, fixed in law and knowable in advance, is the exact opposite — and the essence of the rule of law. As Justice Antonin Scalia often said, a judge who’s always happy with who wins and loses is doing something wrong.

Beyond having the wrong goal for judging, there’s a bit of flimflam in Warren’s attack. Of course, among the thousands of cases Gorsuch has voted on, he inevitably has decided for employers, and against them; for corporations, and against them; for insurance companies, and against them. But he hasn’t decided consistently or inappropriately for or against anyone, any group, or any class.

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That’s evident in the American Bar Association’s Standing Committee on the Federal Judiciary voting Gorsuch a unanimous well-qualified rating, its highest. Having served on that body, I can attest that its members take their task seriously and look critically at every possible issue that could affect a judge’s qualifications. Any hint of impropriety would be inconsistent with the top rating.

The “wrong side” argument also mistakenly assumes that a rule that helps one group necessarily hurts another, big guys or little guys. That is completely wrong. For instance, adherence to fixed, clear rules on contracts helps rich investors such as Warren Buffett — and also helps poor investors whose life savings go into the same sort of funds.

Constant, unsubstantiated and ill-considered assertions of judicial misbehavior have become part of the standard attack on nominees. But the claim that Gorsuch has sided with the wrong sort of litigant is so patently misguided, so obviously wrong and so at odds with the essence of the rule of law, that even aspiring political stars should consider taking it out of the arsenal.

Ronald A. Cass, dean emeritus of Boston University School of Law, is president of Cass & Associates and author ofThe Rule of Law in America. He is also a former chairman of the Federalist Society's Practice Group on International Law & National Security.

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