Scalia, the Sequel

AP Photo/Carolyn Kaster

Judge Neil Gorsuch speaks in the East Room of the White House in Washington, Tuesday, Jan. 31, 2017, after President Donald Trump announced Gorsuch as his nominee for the Supreme Court.

Senate Democrats face a difficult decision: Do they filibuster Judge Neil Gorsuch’s appointment to the Supreme Court or confirm a justice they know will be very conservative? Senate Democrats are rightly outraged that Republicans stole this seat on the Supreme Court through the unprecedented refusal to hold hearings or a vote on the nomination of Chief Judge Merrick Garland. Everything known about Gorsuch is that he will be a reliable conservative vote across a wide range of constitutional and statutory questions. Democrats remember that there were 48 votes against Clarence Thomas and 42 against Samuel Alito—and in hindsight, that it was a huge mistake not to block them through filibusters.

But filibustering Gorsuch risks the Republican majority in the Senate changing the rules to eliminate the filibuster for Supreme Court nominees. Also, there is no point in filibustering Gorsuch unless the Democrats are willing to do that for the nominees that would follow his rejection, including some who might have even more extreme conservative records. 

Getting three Republican senators to vote against Gorsuch or enough Democrats to filibuster to block him is going to be difficult. Gorsuch has impeccable credentials to serve on the Supreme Court. He is a graduate of Columbia University, Harvard Law School, and Oxford University. He clerked for Judge David Sentelle, on the U.S. Court of Appeals for the District of Columbia Circuit, and for Justices Byron White and Anthony Kennedy on the Supreme Court. He served in the Bush administration and worked in private practice before being appointed by President Bush in 2006 to the U.S. Court of Appeals for the Tenth Circuit. 

In the weeks ahead, it will be necessary to scrutinize every aspect of Gorsuch’s writings and speeches, on and off the bench. Most troubling, are Gorsuch’s statements that he is an “originalist,” which means that he believes that the meaning of a constitutional provision is fixed at the time that it is enacted and can be changed only through the amendment process. In a tribute to Justice Scalia, Gorsuch said: “Judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be.”

Robert Bork’s nomination for the Supreme Court was rejected by the Senate in 1987 precisely because of such originalist views. An originalist would reject constitutional protection for privacy, including for reproductive autonomy, reject constitutional protection for marriage equality for gays and lesbians, and reject protecting women from discrimination under equal protection because none of these were envisioned by the framers of the Constitution. All of these were Justice Scalia’s positions. If they are Gorsuch’s, if he is truly an originalist like Bork and Scalia, he definitely should be denied confirmation, including by filibuster.

One very troubling aspect of Gorsuch’s record is his upholding the ability of people to use their religion as a basis for inflicting injuries on others. Judge Gorsuch wrote an opinion expressing the view that it violated the Religious Freedom Restoration Act to force an employer, who opposes contraception on religious grounds, to provide insurance coverage for contraceptives to women employees. Ultimately, the Supreme Court agreed with Gorsuch, in a sharply divided 5-4 ruling that split exactly along ideological lines. 

Similarly, Gorsuch said that it violated the Religious Freedom Restoration Act to require not-for-profit institutions affiliated with religions to notify their insurance carriers if they did not want to provide insurance coverage for contraceptives. Even though there would be no cost whatsoever to the employer, Judge Gorsuch believed that this was a substantial burden on religious freedom because it would compel the insurance company to provide contraceptives and thereby make the employer “complicit.” The current Court is split 4-to-4 on this.

These cases also can be seen as reflecting Gorsuch’s hostility to protecting reproductive rights. That hostility also was evident in a dissent he wrote to the denial of review by his entire court of a ruling that found it illegal for the State of Utah to defund Planned Parenthood. 

Gorsuch clearly will follow in Justice Scalia’s footsteps and join the conservatives in rejecting the idea of a wall separating church and state. In a number of cases, he approved religious symbols on government property. Like Scalia, he has consistently voted for employers when they are sued for discrimination in violation of federal civil rights statutes.

On most issues, there is not a “paper trail” to indicate how Gorsuch would vote if confirmed for the Supreme Court. For example, there are not cases that reveal how he would deal with the many lawsuits already filed against President Trump, such as for violating the Emoluments Clause of the Constitution and for his executive order that limits immigration in a way that clearly violates federal law and unconstitutionally discriminates against Muslims.

In theory, the confirmation hearings will provide clearer answers as to how Gorsuch will vote as a Supreme Court justice. But in reality, rarely are the confirmation hearings useful in this regard. Gorsuch will be asked tough questions, but he is far too smart to say anything that could be used to make a case against him. In 2006, I testified against the confirmation of Samuel Alito. At a break, then-Senator Joseph Biden said to me, “This is all an exercise in kabuki theater. The Republicans know that Alito will be a staunch conservative, but are pretending that he has no ideology. The Democrats are asking him questions to get him to commit, but he’s too clever for that.” I am sure the same will be true for Gorsuch.

In the end, the Democrats may decide that it is not this seat on the Court, but the next one that will warrant a filibuster. If Gorsuch is confirmed, it essentially will restore the ideological balance to what it was before February 13 of last year. But if Ruth Bader Ginsburg, Anthony Kennedy, or Stephen Breyer is replaced by Donald Trump, that would dramatically change the Court and mean likely five votes to overrule Roe v. Wade, end affirmative action, and gut many federal civil rights laws.

On the other hand, confirming Gorsuch, who is only 49 years old, will mean a staunch conservative justice will hold that seat on the Court for decades to come. I would like to see the Democrats filibuster Gorsuch and all Trump nominees until he picks a moderate. The question is whether the Democrats can get enough votes to do this—and whether Republicans would then dispense with the 60-vote requirement for Supreme Court nominees altogether. 

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