“A truly terrible idea.” That’s what Harvard Law Professor Noah Feldman in his Bloomberg View column calls the latest attack on Supreme Court nominee Judge Neil Gorsuch, that he is, in the words of a New York Times headline, “No Friend of the Little Guy.” Nonsense, says Feldman, adding that he would have preferred to see former President Barack Obama’s nominee, Judge Merrick Garland, be confirmed for the seat it seems certain Gorsuch will soon occupy. “Siding with workers against employers just isn’t a jurisprudential position.”
Feldman is obviously right in this. He goes on to examine three cases on which the judge’s critics base their argument, and comes to essentially the same conclusion as conservative Ed Whalen of the Ethics and Public Policy Center, writing in National Review: Judge Gorsuch had a reasonable basis, grounded in applicable law, for each of three (not very many!) opinions criticized. The reduction ad absurdum of the Gorsuch opponents is that judges should rule for the “little guy” in every lawsuit, in which case income and wealth would be systematically redistributed, only to be redistributed once again. . . . You get the point. The position Feldman and Whalen knock down just isn’t intellectually defensible.
The fact that it is being made is evidence of desperation on the part of those who want to stop the Gorsuch nomination. It is reminiscent of the social realism art of the late New Deal and Popular Front days. This produced some terrific songs (“This Land Is Your Land”) and some great poster art, but the “little guy” rhetoric of the late 1930s does not resonate with any sizeable number of voters as it once did.
What’s interesting is that the Gorsuch opponents aren’t basing their arguments, as they did against earlier Republican Supreme Court nominees, on the need to uphold (and praise) Roe v. Wade. The fact that the decision is not in any danger from this nomination (even if you assumed a Justice Gorsuch would vote to overturn it, there remain five solid votes to keep it in place) would not prevent Democrats from raising this issue, but they’re not. My sense is that “choice” no longer has the political force it once did.
For many women of the Baby Boom generation, “choice” meant not only the right to have an abortion (the youngest boomer, born in 1962, is unlikely to qualify for one today); it also stood as a proxy for choices they have made in their lives which are different from and sometimes opposed to what they were told to do as they were growing up. To their credit, I think many women of this generation were their own toughest critics, questioning often whether they were living up to their family responsibilities or to the professional or economic responsibilities. When I hear feminists say women should be able to “have it all,” I wonder who in life of any gender or generation, has it all? Even the richest and most gifted of us, after all, only live 24 hours a day.
But that experience is not shared by younger women, I think. Evidence for that is Hillary Clinton’s performance in the Democratic primaries, where she consistently lost millennial women to Bernie Sanders. The virtual silence about “choice” and Roe v. Wade in consideration of the Gorsuch nomination strikes me as more evidence for the point. Abortion is not going to be criminalized in this country, but it has become stigmatized and increasingly uncommon. So instead of making an argument about “choice” and abortion, Gorsuch’s critics stoop to the — as Noah Feldman recognizes — ridiculous “little guy” argument. A sign of desperation.
