While avoiding Roe v. Wade talk, Gorsuch opponents roll out a facile ‘little guy’ argument

Published March 16, 2017 2:21pm ET



“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.

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