Gorsuch comments on 'settled law' unsettling to conservatives

The U.S. Supreme Court

Republicans have waited eight years for the chance to place another conservative justice on the Supreme Court, and they apparently have their chance now that President Trump has nominated Judge Neil Gorsuch to fill the seat vacated by the late Antonin Scalia.

But his comments, during his confirmation hearing this week in the U.S. Senate, revealed the nation's "settled law" includes "gay marriage" and unlimited abortion.

While being questioned by Sen. Dick Durbin, D-Ill., on the destruction of unborn children, Gorsuch stated "the Supreme Court of the United States has held in Roe v. Wade that a fetus is not a person for purposes of the Fourteenth Amendment."

When Durbin asked if he accepted that, the judge replied, "That's the law of the land. I accept the law of the land, senator, yes."

And when pressed on "same-sex marriage," Gorsuch acknowledged the Supreme Court had ruled such marriages are protected by the Constitution. He declared Obergefell v. Hodges, which struck down "same-sex marriage" bans nationwide in 2015, to be "absolutely settled law."

Given this, Daniel Horowitz, senior editor at Conservative Review, is not the least bit confident Gorsuch is the constitutional conservative many Republicans are hoping for.

"Gorsuch is saying that Roe is the law of the land and Obergefell, which is one of the most radical opinions ever, is 'absolutely settled law,'" Horowitz told WND. "There's nothing there to give us assurances that he's anywhere on par with Scalia, and that's the seat we're filling."

Horowitz said Gorsuch’s deferential attitude toward Supreme Court precedent, even on cases that themselves upended precedent, illustrates the problem he wrote about in his book "Stolen Sovereignty: How to Stop Unelected Judges From Transforming America."

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"The reason why we will never fix the courts by having Republicans merely pick better judges is the same reason we haven't fixed it through that same process until now," Horowitz explained. "It's that we continue to buy into the premise of judicial supremacy, of this one-directional precedent."

Horowitz used the example of immigration to demonstrate his point.

"Liberal judges could take the most settled area of law, which is national sovereignty, the right of the political branches to determine who comes into the country, and then they could unsettle it overnight, turn over 200 years of precedent, no problem," he elucidated. "Once they do that once, then our side agrees to regard that as settled law, and this is why we can never win. It's a one-directional legal ratchet, and I think we're really seeing that play out."

Horowitz pointed out liberals never agree to regard conservative-leaning court decisions, such as District of Columbia v. Heller, as settled law. This is why he refers to a "one-directional" ratchet.

He acknowledged the possibility Gorsuch could be a "stealth conservative" like Clarence Thomas, but he noted Republican presidents have a very poor track record in the past 50 years of picking conservative Supreme Court justices.

Part of the reason, according to Horowitz, is that Republican nominees rarely assure the public of where they stand on controversial issues during their confirmation hearings, whereas Democratic nominees usually affirm their liberal orthodoxy during their hearings.

Indeed, Gorsuch spent much of his hearing concealing his personal opinions on hot-button issues, believing a statement of belief now would impede his impartiality in future cases.

"There really is nothing apparent, either in his background or the comments he's making, that gives me much hope on any of the critical issues of immigration, marriage, voting laws, that he is going to aggressively enforce the true original meaning of the Constitution, not just in rhetoric, but actually in practice with the boldness of a Scalia and a Thomas," Horowitz pronounced. "I'm just not seeing that. I would challenge anyone who is very excited about Gorsuch to point to anything, either in his background or at the confirmation hearing, that should give us more confidence than we had in John Roberts after his confirmation."