Judge Neil Gorsuch at his Supreme Court confirmation hearing on Capitol Hill in March.
By Ruth Ann Dailey
Whether it was “unprecedented” or just highly unusual, the Democrats’ decision to filibuster the nomination of Neil Gorsuch to the Supreme Court was epically shortsighted.
They burned through their political arsenal, wasting it on a likable, mild-mannered nominee.
They cried “wolf” over a lamb. What will they do next time?
The savvy political operators, it turns out, are the devoutly religious voters who held their noses in November and cast their ballots for Donald Trump. They have just been vindicated — hugely, you might say.
Last fall, during the steady stream of distasteful quotes and revelations from Mr. Trump’s past, when I asked friends and relatives who are committed Christians — evangelicals, fundamentalists and Catholics — about their (usually reluctant) preference for the Republican candidate over Democrat Hillary Clinton, I got one of two responses:
Either “I’d rather have crude than corrupt” or “Two words: Supreme Court.”
The crudeness has disappeared, post-campaign, and as for the Supreme Court, the die was cast in November, and the religious gamblers have just won.
In their post-election soliloquies, commentators had plenty to say about the dissonance between the new president’s behavior and the very different lifestyle generally promoted by the religious right.
As his supporters figured out months ago, though, it matters less whether President Trump shares their religious convictions than whether he respects their right to hold them.
His selection of Neil Gorsuch puts a man with an agile, discerning mind and, equally important, a winsome personality on the last line of defense for religious dissenters of all stripes.
Judging from his clear and respectful responses to the Senate Judiciary Committee, Judge Gorsuch, who is expected to be sworn in Monday, is no idealogue.
Three weeks ago, for instance, media outlets characterized his exchange with Sen. Dick Durbin, D-Ill., as “sparring,” but Judge Gorsuch was calm as ever, explaining how the Religious Freedom Restoration Act applies to diverse situations — to Muslim prisoners seeking halal meals, to Native Americans wishing to use a “sweat lodge” in ceremonies, to Hobby Lobby and Little Sisters of the Poor wishing to avoid moral complicity in providing employees with contraceptives they believe are wrong.
When Mr. Durbin asserted that RFRA did not apply to corporations, the judge explained — without exasperation — the “strict scrutiny” principle on which his Hobby Lobby decision rested, noting two things: The Supreme Court upheld it, and Congress has the right to rewrite the law to exclude corporations from the definition of “person.”
His confirmation maintains the balance on the court prior to Antonin Scalia’s death: four justices who lean left, four who lean right and Anthony Kennedy as the swing vote. Given his disarming manner, though, Judge Gorsuch may prove to be an even greater asset to the watchdogs of religious freedom — and other civil liberties — than was the more forbidding and sharper-tongued Justice Scalia.
Regardless of individual religious persuasions, though, all citizens should be content with Judge Gorsuch— if they truly want a diverse society. The only people who seem unhappy are those who want to achieve through judicial fiat the social conformity they cannot enforce through the ballot box.
Judge Gorsuch will take his seat just in time to hear some important, perhaps pivotal, cases. Next week brings the oral arguments in Trinity Lutheran Church v. Pauley, in which a church-affiliated preschool is challenging Missouri’s refusal to let it participate in a grant program for safe playground materials.
Also coming up: decisions on whether to hear two cases appealed by gun-rights organizations and another involving a Colorado baker who refused to make a custom cake for a same-sex wedding. Close observers say Judge Gorsuch could be the vote that brings those cases to the nation’s highest court.
Whatever his immediate impact, the new justice, who is only 49 years old, will likely make a difference for decades to come.
And President Trump may not be through. Two justices, Ruth Bader Ginsburg and Anthony Kennedy, are in their 80s; Stephen Breyer will turn 79 in August. Justice Kennedy is a swing vote; the other two lean left. Their replacements would change the court’s philosophical profile.
The Democrats chose their own drastic strategy to obstruct a nominee who was going to be confirmed anyway. It was a wasted gesture. The Republicans took the so-called “nuclear option,” voting to change a relatively recent rule and confirming Judge Gorsuch with a simple majority.
The nation shrugged.
Senate Democrats lost — “bigly.” The winners are Americans who value this country’s world-history-changing religious freedoms — which should mean, well, all of us.
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