March 21, 2017
On March 18, 2017, EPPC President Ed Whelan appeared on Fox News Channel’s “Journal Editorial Report” to offer a preview of the upcoming confirmation hearing for Supreme Court nominee Neil Gorsuch.
Click here or click below to watch a video clip of Mr. Whelan’s appearance. A transcript of Mr. Whelan’s appearance is below the video image:
(transcript via WSJ)
Senate Minority Leader Chuck Schumer: Judge Gorsuch may act like a neutral, calm judge, but his record and his career clearly show he harbors a right-wing, pro-corporate, special-interest agenda.
Paul Gigot: Senate Minority Leader Chuck Schumer Wednesday in preview of the case that the Democrats plan to make against Donald Trump’s Supreme Court nominee. Hearings for Neil Gorsuch are set to begin Monday amid efforts by the left to portray him as an enemy of the little guy to keep them from getting the 60 votes needed for confirmation under current Senate rules.
Ed Whelan is the president of the Ethics and Public Policy Center and a former law clerk to Supreme Court Justice Antonin Scalia.
Ed, good to see you. Thank you for coming in.
Ed Whelan: Thank you, Paul.
Gigot: Where does Neil Gorsuch’s nomination stand now going into the hearing? Is he in a strong position?
Whelan: He is in a very strong position. Judge Gorsuch has an outstanding record. Everyone across the ideological spectrum that has examined that record with care and dispassion has praised him. The American Bar Association Judicial Evaluations Committee gave him its highest unanimous well-qualified rating, what it called its strongest affirmative endorsement. You have folks like the acting solicitor general in the Obama administration, Neal Katyal, who has endorsed Judge Gorsuch from the beginning. You have a whole host of folks, including a member of the board of the American Constitution Society, a left-leaning alternative to the Federal Society. So this is a man who, over more than 10 years, has shown himself to be a superb judge. And it’s a shame that some folks are coming in to try and smear him.
Gigot: It is interesting because the left -0 you see a lot of stories this last week saying that there is some pressure on Democrats, who, from their base, who say that the Democrats have not stepped up and criticized him enough and put enough pressure on him. Therefore, I think it helps to explain some of what we heard from Chuck Schumer.
What about this attack that Judge Gorsuch is basically a spokesman for corporate interests and rules in their favor? Is there anything in his judicial background that would support that?
Whelan: Not at all. The attack is a baseless one. Chuck Schumer himself, years ago, praised Sonia Sotomayor for ruling against sympathetic litigants when their claims were weak. That is exactly what Judge Gorsuch has done. He has ruled based on the law. Sometimes the little guy wins and he’ll be able to cite plenty of cases when he’s ruled for the little guy. Sometimes the little guy loses. That is called the rule of law. It’s something that Chuck Schumer and others on the left, unfortunately, are seeing fit to attack.
Gigot: Where else in the hearings do think that Democrats will try to undermine Judge Gorsuch’s support? Where will they attack him?
Whelan: I think they’re going to try to say that he is no different from Donald Trump and try to fault him for whatever they see to be President Trump’s faults. I don’t think that gets you anywhere. And they tried the same with previous presidents.
Gigot: They’re going to go after him on abortion rights, aren’t they? They’re going to say, you want to repeal — try to coax him to say something about overturning Roe versus Wade, I assume.
Whelan: Sure, they will. The fact of the matter is there is nothing specific in his record about the abortion question. He is a committed Textualist and Originalist and man of courage, and I think that goes well for those of us who believe Roe versus Wade is an abomination that has distorted American politics for more than three decades now and needs to be reversed. When we look at his record, they are not going to see anything that clearly signals anything specific on that matter.
Gigot: You clerked for the late Justice Scalia. Tell us where — and Judge Gorsuch is replacing him, tell us what you think one or two places where he, Neil Gorsuch, would differ, his jurisprudence differs from Justice Scalia.
Whelan: One area that Judge Gorsuch has highlighted is his skepticism of so-called Chevron Deference.
Gigot: That’s the executive authority, executive branch authority.
Whelan: Right. Basically, Chevron Deference means that when a statute is ambiguous, the courts will defer to an administrative agency’s interpretation of the statute. So you can have an agency in one administration say a statute means X, and in the next administration it means Y, and in the next administration says it means not X. And Judge Gorsuch has called into question the soundness of that approach. Justice Scalia was a strong defender of Chevron Deference, though I think in his later years he may have had some second thoughts about how things apply.
Gigot: Think about the irony of that. You have Donald Trump, who everyone is saying is afraid he will run rampant with executive power, and he has nominated a justice who is skeptical of executive branch discretion when it comes to interpreting statutes. I think Democrats should look at that and say, hey, great, this is exactly the kind of justice we want, who will be there and be a bulwark against any abuses by the executive branch.
Whelan: That’s right. And more broadly, Judge Gorsuch is exactly the type of nominee that Democrats would want from a Republican president. And they should be praising Donald Trump for this peck, not attacking him for it.
Gigot: OK, thanks, Edward Whelan. Appreciate you coming in.
Whelan: Thank you.