When he was asked about the recent Judge Gorsuch confirmation process, Senator Mitch McConnell answered, “The Democrats would filibuster Ruth Bader Ginsburg if Trump nominated her.” While McConnell (who joined me in my Supreme Court case, McCutcheon vs FEC) may be exaggerating, one cannot deny that the arguments of Democrats opposing Gorsuch are thin at best.
A common theme we hear from those opposing Gorsuch is that his rulings ‘never favor the little guy.’ It is a generic, straw man argument that generates headlines, makes familiar talking points, and in this case, stands in the way (at least temporarily) of putting a qualified nominee on the Supreme Court.
We hear this ‘little guy’ or ‘victim’ narrative from the left on a regular basis. It was used, unsuccessfully, in my campaign finance case too.
Simply put, judges are charged with applying the Constitution and the law. If the law favors the plaintiff, they should win, if the defendant is in the right, they should prevail. No consideration of wealth, political affiliation, gender, religion, etc. should be considered. Above the Supreme Court it states in stone, “Equal Justice Under Law.”
To those arguing that Gorsuch should issue rulings on behalf of the little guy, should he do so if their perceived underdog is legally wrong? As what point is someone big enough to be the big guy? At what point is it ok to deny their rights under the law? What about the little guy taking on the huge government itself?
In fact, I would argue that my First Amendment case, a case that Judge Gorsuch surely would have supported if he were on the Supreme Court, provided a big voice for the little guy. In my case, I was the little guy. I took on the entire Federal Election Commission – and won. I’m not accusing Ruth Bader Ginsburg of not favoring me because I was the little guy!
As a result of the Supreme Court decision in McCutcheon vs FEC, the number of candidates, parties and causes that someone can support directly increases (the big, medium, and little ones.) As they say a rising tide lifts all boats. In practical and political terms, it lets players get on the field with a chance to win in the marketplace of ideas. Challengers with better ideas can create positive change.
McCutcheon vs FEC allows for more money to enter the political process, giving underdog candidates a chance to raise more money. It helps the little guy. But as far as justice is concerned, size shouldn’t matter anyway.
The arguments against Gorsuch, just like the arguments against me, simply defy intellectual honesty. We should never expect our judges to consider anything other than the Constitution and the law when making their decisions.