From the Left



Will Gorsuch abandon his judicial philosophy to get what he wants?

Dana Milbank on

And surely Gorsuch knows his other non-textualist argument, that the matter is a "legislative rather than a judicial function," is a dodge. Has he met Congress? It can't pass a resolution at 8 a.m. proclaiming it morning.

Other conservatives -- Chief Justice John Roberts and Justice Brett Kavanaugh -- kept their cards close, while a fiery Justice Ruth Bader Ginsburg schooled Trump administration solicitor general Noel Francisco on case law. "I guess I'm thinking of the wrong case," he said when Ginsburg corrected him. When Francisco counseled against interpreting the law to protect gay people, she reminded him: "No one ever thought sexual harassment was encompassed by discrimination on the basis of sex back in '64."

Justice Samuel Alito floated the strained hypothetical of an employer who can't discern an employee's gender. "So this is 'Saturday Night Live' Pat?" asked Pamela S. Karlan, lawyer for the gay plaintiffs.

"I'm not familiar with that," said Alito.

Gorsuch was in no mood for merriment. He competed with Justice Sonia Sotomayor for the floor, interrupted an exchange between Ginsburg and the solicitor general, and retorted to Justice Elena Kagan when she broke in on his questioning of Bursch. "That's helpful," he told her, "but I'm also curious what you have to say, Mr. Bursch."

When Karlan offered a hypothetical about requiring women arguing before the court to wear "Hooters outfits," Gorsuch belittled the "absurd example." When she elaborated, he interjected: "That's not what I'm getting at, and you know what I'm getting at." He pressed her testily and at length on bathroom use by transgender people, leading her to remind him her clients are gay, not transgender.

Gorsuch could be a problem for those seeking to preserve discrimination. That might be why one lawyer for the cause, Jeffrey Harris, struggled when Gorsuch pointed out that the "language of the statute" broadly defines "the causes of discrimination."


Harris rambled, then lost his train of thought: "I'm sorry, remind me of the question one more time?"

The question is whether Gorsuch will interpret the text of the law the way he claims to -- or devise an excuse to produce his desired result.


Follow Dana Milbank on Twitter, @Milbank.

(c) 2019, Washington Post Writers Group



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