As promised, President Trump has nominated to the Supreme Court a judge in the mold of the late Justice Antonin Scalia. Neil Gorsuch, like Scalia, is an “originalist,” who interprets the Constitution the way he thinks the founders intended, and a “textualist,” who favors the plain meaning of statutes and the Constitution.
Gorsuch is a very conservative judge who would likely rubber stamp much of Trump’s reactionary agenda. At age 49, Gorsuch, who would be the youngest justice on the court if confirmed, could help shape U.S. jurisprudence for three or four decades.
Many Democratic senators and people throughout the country think Trump’s nominee will steal the seat of moderate Merrick Garland, former President Obama’s choice to replace Scalia. Last year, in an unprecedented move, the Republican-controlled Senate Judiciary Committee refused to even provide Garland a hearing. The court has remained an eight-justice bench for nearly a year, with several cases resulting in a 4 to 4 stalemate.
“Even More Radical Than Scalia”
Gorsuch, who clerked for Justices Byron White and Anthony Kennedy, spent 10 years working for a high-profile law firm in Washington, D.C. In 2006, after a brief stint at the Department of Justice, he was appointed to the 10th U.S. Circuit Court of Appeals by George W. Bush. Gorsuch is a strong advocate of gun rights and the death penalty, opposes assisted suicide, and defers to religious organizations about whether they will follow the requirements of the Affordable Care Act (ACA).
Trump was right when he said Evangelicals “will love my pick.” Although Gorsuch hasn’t ruled specifically on abortion, his opinions provide a good indication that he will not be sympathetic to reproductive rights. He deferred to Christian organizations about whether the mandate of the ACA to provide contraception to their employees “burdens” their free exercise of religion. He wrote a book against assisted suicide and voted to uphold a public display of the Ten Commandments.
Trump has heeded the advice of John Yoo, one of Bush’s notorious legal mercenaries, who wrote the infamous “torture memos.” Yoo and Saikrishna Prakash wrote in the Los Angeles Times, “In practical terms, Trump should reject nominees who pursue abstract concepts like ‘justice’ and ‘fairness,’ concepts that have been used by judges to smuggle their preferred policy preferences into the job of interpreting our founding document.”
According to the Sierra Club, Gorsuch “has a record of denigrating the power of agencies like the [Environmental Protection Agency] to make rules to carry out their functions.”
Nan Aron, president of Alliance for Justice, said Gorsuch’s position on federal regulation was “extremely problematic” and “even more radical than Scalia,” adding, “Not requiring courts to defer to agency expertise when an act of Congress is ambiguous, will make it much harder for federal agencies to effectively address a wide variety of critical matters, including labor rights, consumer and financial protections, and environmental law.”
Gorsuch’s nomination is also opposed by NARAL Pro Choice America, Service Employees International Union, the Leadership Conference on Civil and Human Rights, the Latino Victory Project, Human Rights Campaign and Greenpeace.
The rights of public sector unions, environmental regulations, contraception and LGBTQ rights will face the Court in the near future. And the rights of immigrants, particularly the constitutionality of Trump’s Muslim ban, will also likely come before the high court. In light of his record, one cannot have confidence that Gorsuch will uphold these rights.
Fragile Barriers to Confirmation
Sen. Jeff Merkley (D-Oregon), has pledged a filibuster. “This is a stolen seat,” he declared.
If Democrats do indeed filibuster Gorsuch’s nomination, the Republican-controlled Senate will need 60 votes to confirm him. Several Democratic senators have voiced opposition to the nomination.
In pledging to vote against Gorsuch, Sen. Elizabeth Warren, D-Mass., issued this statement:
Before even joining the bench, [Gorsuch] advocated to make it easier for public companies to defraud investors. As a judge, he has twisted himself into a pretzel to make sure the rules favor giant companies over workers and individual Americans. He has sided with employers who deny wages, improperly fire workers, or retaliate against whistleblowers for misconduct. He has ruled against workers in all manner of discrimination cases. And he has demonstrated hostility toward women’s access to basic health care.
For years, powerful interests have executed a full-scale assault on the integrity of our federal judiciary, trying to turn the Supreme Court into one more rigged game that works only for the rich and the powerful. They spent millions to keep this seat open, and Judge Gorsuch is their reward.
Every day, our new president finds more ways to demonstrate his hostility for our independent judiciary, our civil society, and the rule of law. Now more than ever, America needs Supreme Court justices with a proven record of standing up for the rights of all Americans ― civil rights, women’s rights, LGBT rights, and all other protections guaranteed by our laws. We don’t need another justice who spends his time looking out for those with money and influence.
Sen. Chuck Schumer, D-NY, concurred, saying, “Judge Gorsuch has repeatedly sided with corporations over working people, demonstrated a hostility toward women’s rights, and most troubling, hewed to an ideological approach to jurisprudence that makes me skeptical that he can be a strong, independent justice on the Court.”
“It is imperative that a new justice be prepared to defend the rights of all Americans, not just the wealthy and large corporations,” Sen. Bernie Sanders, D-Vermont, noted.
Sen. Ron Wyden, D-Oregon, said, “No senator who believes individual rights are reserved to the people, not the government, can support Gorsuch’s nomination.”
“I cannot support any nominee who does not recognize that corporations are not people,” Sen. Sherrod Brown, D-Ohio, stated.
Ultimately, Gorsuch will likely be confirmed because, faced with a filibuster, the Republicans will probably change the rules to allow confirmation with a 51-vote majority. With Gorsuch on the Court, it will return to the ideological balance that existed before Scalia’s death.
Moreover, in light of the advanced ages of Justices Ginsburg, Kennedy and Breyer, Trump may well have another opportunity to nominate a justice to the Court. If and when that occurs, the Court will make a sharp turn to the right for decades to come.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law and former president of the National Lawyers Guild. Her most recent book is Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. Follow her on Twitter @MarjorieCohn.
Copyright Truthout. Reprinted with permission.