The Federalist | Curtis: Sen. Tammy Baldwin Refuses To Give Neil Gorsuch The Courtesy Of A Fair Hearing

This piece originally appeared at The Federalist.

Wisconsin’s junior senator could not hold out for more than 48 hours before giving in to deep partisanship and vindictiveness on Supreme Court nominee Neil Gorsuch.

The national hysteria which has ensued following the election of Donald Trump seems to have infected the U.S. Senate. Unfortunately, following months of one of the most negative campaigns in modern history, it was fairly predictable that protestors would take to the streets in major urban areas and near college campuses. Last week’s “protests” at the University of California-Berkley provides a perfect case in point.

Less predictable was the extent to which Senate Democrats would go to obstruct the most basic of Senate functions, particularly since ten incumbent Democratic senators will be facing electorates in 2018 that voted for President Trump, some by as much as 42 points. Last week numerous Senate committees were left with only Republicans present as Democrats refused to attend confirmation hearings, and it looks as though Democrats are going to continue with their obstructionist tactics.

 Breathtakingly, even prior to the formal introduction of Judge Neil Gorsuch as President Trump’s nominee to the Supreme Court, several Democrats hinted at a filibuster, a truly unprecedented move. Following Gorsuch’s introduction, no response rivaled that of Wisconsin’s Sen. Tammy Baldwin.

In a statement released the very night he was introduced, Baldwin opened by stating President Trump has “offered someone who will have a hard time earning bipartisan support,” never mind that Gorsuch was appointed unanimously to the Tenth Circuit Court of Appeals in 2006 on a voice vote. Baldwin claimed she would “do [her] job to fully review Judge Gorsuch’s record” and would “look forward to meeting with him.”

But don’t confuse these statements as seemingly open-minded. No, Baldwin is only looking forward to meeting Gorsuch because she has “a number of concerns and questions about his deeply troubling record, particularly his rulings against disabled students, against workers, and against women’s reproductive health care.” Baldwin concluded by committing to giving “fair consideration to this nomination”….even though he is “someone who will put his own political preferences above the law and legislate President Trump’s far right agenda.”

So ‘Fair Consideration’ Means ‘You Stand No Chance’

Well, color me “deeply troubled” by Baldwin’s utter lack of willingness to give Gorsuch “fair consideration.” If it sounded like Baldwin’s press release was simply a list of talking points from the Left, that’s because she likely was simply using a list of talking points from the Left. See for yourself.

It’s deeply troubling that Baldwin considers religious liberty to be a threat to the fabric of society. Her reference to “women’s reproductive health care” is likely related to the Tenth Circuit’s decision in Hobby Lobby Stores, Inc. v. Sebelius, which, as her liberal talking points make clear, the Supreme Court later affirmed. The question before the court in Hobby Lobby was whether the Affordable Care Act could require a closely held family business to provide drugs and devices to employees that the family believed to be abortifacients, “the use of which is contrary to their faith.” The court held the ACA could not impose such a requirement.

In a concurring opinion, Judge Gorsuch wrote the following, which Baldwin as a trained attorney should appreciate, but clearly does not: “No doubt, the Greens’ religious convictions are contestable. Some may even find the Greens’ beliefs offensive. But no one disputes that they are sincerely held religious beliefs.” The case is as much about religious freedom as it is about “women’s reproductive health care,” a point clearly lost on Baldwin.

Baldwin Distorts the Truth

It’s deeply troubling that Baldwin would distort the clear holdings in several cases relating to complex interpretations of the federal Individuals with Disabilities Education Act (IDEA) as “rulings against disabled students.” While the concepts may be foreign to Baldwin, jurists who adhere to the principles of textualism and originalism do not attempt to decipher legislative intent to arrive at the “just” outcome. That’s not a court’s job.

It’s why in Thompson R2-J Sch. Dist. v. Luke P., Gorsuch wrote for the court that it sympathized with the student’s family and did not question the enormous burdens the family faced in dealing with the student’s autism but its job was “to apply the law as Congress has written it and the Supreme Court has interpreted it.” Gorsuch went on to note the limited scope of the IDEA mandates.

Consistent with the hysteria that has permeated the Left, Baldwin’s willingness to immediately and blindly undermine Gorsuch’s nomination prevents her from recognizing areas of potential agreement. Just recently, Gorsuch authored the opinion in United States v. Ackerman, where the court held that government accessing a person’s emails constitutes a “search” under the restored property rights trespass test.

She’s Just Playing Politics

Instead of simply parroting the Left’s talking points, Baldwin should view Judge Gorsuch’s willingness to question the Chevron standard as a positive development. With the prospects of at least four years’ worth of President Trump agency interpretations, one would think Baldwin would consider it a worthy effort to rein in the deference to be afforded such interpretations.

Sadly, that sort of objective consideration will not take place. Two days after Trump introduced Gorsuch, Baldwin declared she will not support him and will support a filibuster. When called out by Wisconsin Gov. Scott Walker, her response included the typical gyrations, specifically the example set by Republicans over Judge Garland. Baldwin seems to forget that Republicans were simply following the “Biden Rule,” particularly in light of the “overall level of bitterness that sadly infects our political system.”

But that’s not the point. Apparently Baldwin’s willingness to meet with Gorsuch, review his record, and give fair consideration to his nomination was nothing more than a façade. How sad (but fitting) Wisconsin’s junior senator could not hold out for more than 48 hours before giving in to deep partisanship and vindictiveness. As one of the ten senators up for reelection in 2018 in a state that voted for President Trump, Baldwin will have to answer for her own “deeply troubling” record.

Jake Curtis is an associate counsel and federalism litigator at the Wisconsin Institute for Law and Liberty’s Center for Competitive Federalism.
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