America’s newest Supreme Court Justice – Neil Gorsuch – has made news in the liberal media – not necessarily for his opinions though.
This is hard to square with the praise Gorsuch received from colleagues and former law clerks during his confirmation hearing, writes Elizabeth Slattery in a commentary on Heritage.org.
As an example of the outpouring of support for Gorsuch, here’s a former law partner – almost breaking down in tears – talking about how “whip smart,” honest and honorable the man is.
But to read the headlines, you’d think that was all made up.
In a recent episode of the Supreme Court podcast “First Mondays,” NPR’s legal affairs correspondent Nina Totenberg took aim at Gorsuch. First in her crosshairs was his habit of frequently citing the Constitution. She objected to Gorsuch bringing things back to first principles at oral argument. He often prefaces his questions by saying, “Let’s look at what the Constitution says about this … It’s always a good place to start.” This should come as no surprise.
But it annoys liberals, who want a “modern” interpretation of the Constitution, without the baggage of the historical record. That’s not how Gorsuch operates. A former clerk wrote: “Whenever a constitutional issue came up in our cases, he sent one of his clerks on a deep dive through the historical sources. ‘We need to get this right,’ was the memo—and right meant ‘as originally understood.’”
But Totenberg wasn’t done criticizing Gorsuch. She also claimed there is a fight brewing between the new Justice and his colleague, Justice Elena Kagan. Here’s what she said:
My surmise, from what I’m hearing, is that Justice Kagan really has taken [Gorsuch] on in conference. And that it’s a pretty tough battle and it’s going to get tougher. And she is about as tough as they come, and I am not sure he’s as tough—or dare I say it, maybe not as smart. I always thought he was very smart, but he has a tin ear somehow, and he doesn’t seem to bring anything new to the conversation.
Here’s how Slattery put it:
First, I’m highly skeptical of someone purporting to know what happened when the court met in conference. The justices are notoriously secretive about these meetings—not even law clerks are allowed in the room. During conference, the justices discuss cases following oral argument and cast their initial votes in conference, though they sometimes change after draft opinions have been circulated. This is precisely the time for the justices to debate the issues in a case.
Second, Totenberg’s assertion that Gorsuch is “maybe not as smart” as she thought is off base. Anyone who has read his speeches or his written opinions—either from his time on the appeals court or his first two months on the Supreme Court—can see why that is patently false. The Columbia-Harvard-Oxford-educated judge weaves literary references into his opinions and writes in a clear, concise manner that’s easy for lawyers and lay people alike to understand.
Totenberg also claims that she doesn’t think Gorsuch believes in precedent. This is likely her fear – and the fear of millions of liberals – that he would vote to overturn the 40-year-old Roe v. Wade decision lifting bans on abortion.
Unless Nina Totenberg has a microphone in the chambers, she should leave her analysis to what she can actually see and hear.