Cliff Kincaid
Is Gorsuch a 'stealth nominee'?
By Cliff Kincaid
April 3, 2017

When the first President Bush nominated David Souter for a seat on the Supreme Court, the nominee was sold to conservatives as a fellow conservative but turned out to be a solid member of the court's liberal bloc. As such, Souter was labeled a "stealth nominee" to advance the liberal agenda. Could Judge Neil Gorsuch be another Souter?

On the surface, such a question seems absurd. Gorsuch was selected by President Donald Trump from a list of 21 "conservative" nominees assembled by the Federalist Society and the Heritage Foundation, two respected conservative groups.

Like most conservatives, inside-the-beltway operative Matt Schlapp of the American Conservative Union fell in line behind the nominee. He called Gorsuch "a reliable defender of the constitutional rights of every American" and a "self-described originalist who seeks to interpret the Constitution as the Founders intended." Dr. Robert George of Princeton University said, "In selecting Gorsuch, President Trump has without question fulfilled his pledge to appoint a justice in the mold of Antonin Scalia – a conservative intellectual leader."

But the hearings on Gorsuch's nomination did produce controversial comments suggesting that, like Souter, he could turn out to be a member of the court's liberal bloc on issues like gay marriage, abortion, and even gun rights.

Pro-life activist Mark Harrington of Created Equal said that he was troubled by the testimony Gorsuch gave during his confirmation hearings on abortion and homosexuality. "Words mean things," he told AIM. He said "people weren't listening or watching" if they missed the significance of these remarks by the nominee. In his opinion, he said it appears that Gorsuch "values precedent over the Constitution," given his remarks on abortion and gay marriage.

As the Constitution and history demonstrate, there were no abortion or gay marriage "rights" at the time of America's founding. Those "rights" didn't exist in America's founding documents. Indeed, the Declaration of Independence affirmed, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness."

A product of elite liberal colleges and universities, Gorsuch strongly indicated during his confirmation hearings that the "rights" which now exist are those imposed on the nation by the Supreme Court. He attended Harvard Law School with former President Barack Obama, notes Politico.

At the same time, he expresses support for the right to life in his book The Future of Assisted Suicide and Euthanasia. He is also considered a strong supporter of religious freedom rights.

While many conservative groups have endorsed Gorsuch, and liberal groups have opposed him, some reporters of a conservative bent have taken the time to follow the hearings and comment on what Gorsuch actually said. For example, Steve Jalsevac of LifeSiteNews analyzed his statements and observed, "...this man is NOT, as Trump has repeatedly been told, another Scalia," the conservative justice who passed away last year and whose seat Gorsuch would fill.

Paul Bremmer of WorldNetDaily notes that Gorsuch, during his confirmation hearings, labeled as the "law of the land" or "settled law" the rulings on "unlimited abortion" and homosexual marriage.

Indeed, Gorsuch called the Supreme Court's pro-abortion ruling, Roe v. Wade, "the law of the land," and added, "I accept the law of the land." That ruling led to the legalization of abortion on demand across the country, striking down state laws protecting the rights of the unborn.

His exact words were, "I would tell you that Roe v. Wade, decided in 1973, is a precedent of the United States Supreme Court. It has been reaffirmed.... So a good judge will consider it as precedent of the United States Supreme Court worthy of treatment as precedent like any other."

"To me," wrote Jalsevac, "there was something unnerving about how far he went in accepting the current realities of that horrendous decision that was based on lies and deliberate misinterpretation of the Constitution."

Gorsuch called the same-sex "marriage" Obergefell v. Hodges ruling imposed on the states "absolutely settled law." Jalsevac said, "That comment seemed to indicate Gorsuch is not a full constitutional originalist. No originalist would ever make such a comment that appears to betray the Constitution and the intentions of the Founders – considering the travesty of the Obergefell decision."

Pro-life activist Mark Harrington told AIM that while the nominee's statements were troubling, his remarks on homosexual marriage being "absolutely settled law," based on a ruling made only eighteen months ago, were even more incomprehensible.

Scalia, a real "constitutional originalist," had called the Court's gay marriage decision a judicial "Putsch." By that, he meant that the court had overthrown our democratic Republican form of government by creating rights that didn't exist in the Constitution and which the people in all 50 states had not voted for.

In other little-noticed comments that emerged after the nomination was made or during the hearings, Gorsuch's former law clerk, John Goodbaum, said Gorsuch was personally supportive of his "gay marriage," while Gorsuch's pastor, Susan Springer, was reported to have "proudly" attended the anti-Trump Women's March in Denver, Colorado. The church he attends is "notably liberal," the Washington Post reported. Reverend Springer is reported to be in favor of gay marriage and offers blessings to same-sex couples.

Mark Harrington of Created Equal had warned conservatives before the hearings to engage in "extreme vetting" of the nominee, and has since concluded that he can't support Gorsuch.

He reminded conservatives, "President Reagan gave us Justice Kennedy. George H.W. Bush gave us Justice Souter. George W. Bush gave us Justice Roberts."

History shows that Justice Anthony Kennedy authored the ruling legalizing same-sex marriage throughout the United States, while Chief Justice John Roberts gave us Supreme Court approval of Obamacare.

In the case of Souter, while many conservatives were fooled by White House assurances that he was a true conservative, the late conservative activist Howard Phillips had warned of Souter's pro-abortion record and predicted he was going to be liberal on other social issues.

"We can't get this one wrong," Harrington said, referring to the pick of Scalia's replacement. "We have no margin of error. Getting it wrong condemns millions of preborn children to death. This time around, we will trust but verify."

Despite Gorsuch's controversial remarks in his confirmation hearings, conservative activist Carrie Severino of the Judicial Crisis Network told CBS News that she is confident Gorsuch won't be another Souter. Her group launched a $10 million campaign to support Gorsuch.

Some other columnists who have examined the record are not so sure. While Gorsuch "appears to have everything conservatives would want in a Supreme Court nominee," New York Daily News columnist Adam Edelman notes that "there is a very thin paper trail when it comes to Gorsuch's judicial rulings on key conservative issues like abortion and gun rights."

In addition to the Souter case, Anthony Kennedy "had been seen by conservatives as a reliably right-leaning justice," but over time came to be associated "with the court's liberal bloc, becoming a critical swing vote on dozens of momentous decisions," Edelman points out.

Gorsuch worked as a law clerk for Kennedy in the early 1990s. In his opening statement for his confirmation hearings, he said he "had the great fortune to clerk for Justice Kennedy" and that Kennedy "showed me that judges can disagree without being disagreeable."

"Justice Scalia was a mentor, too," Gorsuch said. "He reminded us that words matter. That the judge's job is to follow the words that are in the law, not replace them with those that aren't."

But the words he uttered at the hearings about preserving the "rights" that have been made up by a liberal Supreme Court will continue to raise questions about whether he is a "Scalia clone," as some liberals charge.

© Cliff Kincaid


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
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