BY JOE KEENAN
If you are reading this article with currently no idea who Neil Gorsuch is or why he is important, that is alarming but understandable. In the tangled, confusing mess of the first few months of the Trump Administration, attention has been elsewhere. Amid Russian collusion allegations, top level resignations and accusations of wiretapping by former Presidents, a nomination for the Supreme Court must have seemed a little tame.
However, there are several reasons why we should not allow Gorsuch’s nomination to be lost amongst the background noise.
First, Supreme Court Justices have jobs for life. This means that aside from the Trump Presidential Library (which I assume will be gold plated, double as a casino and be situated in Las Vegas) a Trump-nominated Supreme Court Justice could be the longest lasting aspect of President Trump’s legacy. At a sprightly 50 years old this year, Neil Gorsuch is the youngest Supreme Court Nominee since William Rehnquist in 1971, and has the potential to serve for 30 years or more. If confirmed, Gorsuch will be a check on power of multiple Presidents and give rulings on the most important court cases in the US for decades to come.
Arguably a more pressing reason to pay attention to Gorsuch’s nomination, is the capability of Supreme Court decisions to shape the political and social landscape of the world’s most powerful state. It was Brown v Board of Education that ended de jure school segregation. It was Citizens United v Federal Election Commission that facilitated the shadowy, opaque campaign finance laws permeated by Super PACs and corporate megadonors. On a more positive note, it was 2015’s Obergefell v Hodges that finally made same-sex marriage a right nationwide. It is this immense capability to shape American socio-political conditions, that demand an informed debate on whether the Senate should confirm Judge Gorsuch.
Verdict: Should the Senate confirm Gorsuch?
Senator Bernie Sanders will not vote to confirm Judge Gorsuch. He has concerns that Gorsuch did not express a definitive opinion on issues important to Sanders in their meeting. These concerns are legitimate. A nominee for Supreme Court Justice being unable or unwilling to offer opinions on either Voter I.D laws or the 2010 Citizens United decision raises serious questions about his suitability.
Moreover, many critics have problems with his minimalist approach. Ayesha Khan, former longtime legal director of Americans United for Separation of Church and State, argues it is ‘intellectually dishonest to say you can divine the founders’ original intent.’ It is a fair point. Should a judges limit themselves to the literal meaning of a text written hundreds of years ago, whose authors could not possibly have imagined the effect their words would have on a modern society with its unforeseeable problems? Or should they take the values instilled in those words and apply them in their rulings?
Khan also argues against Gorsuch on the grounds that an ‘originalist, textualist philosophy always paves the way for religious messages by government or strikes down efforts to protect women’s reproductive rights’. She has good reason to be wary of Gorsuch. As a judge on the 10th Circuit Court of Appeals, he upheld religious exemptions for employers who felt providing oral contraceptives violated their religious beliefs. His stated views on the sanctity of human life could easily be applied to the abortion debate. At a time when a Republican controlled Congress is gunning for Planned Parenthood, and in the White House is a President who has expressed his desire to overturn Roe v Wade, pro-choice campaigners fear Gorsuch would do little to stand in their way.
One could also forgive Democrats for being bitter and resentful. Mitch McConnell, the Senate Majority Leader, and Chuck Grassley, the Chair of the Senate Judiciary Committee were the architects of the obstructionist strategy deployed against Merrick Garland, President Obama’s nominee to fill Antonin Scalia’s seat. There would be no hearing, and certainly no vote on Merrick Garland was the message from Republicans. Democrats cannot stop Gorsuch’s hearings. However, with 60 votes needed to confirm Gorsuch, and Republicans only holding 52 seats, many Democrats feel now is the time to get some payback. Unless Republicans can get 8 Democrats to flip on Gorsuch, under the current rules he will not be confirmed. Democrats would argue the Republicans made their bed, and now they have to lie in it.
Despite all these arguments, I still believe the Senate should vote to confirm Gorsuch.
Firstly, balance is key on the Supreme Court. The judge Gorsuch is replacing, Antonin Scalia, was fiercely conservative. If confirmed, Gorsuch would join 3 other conservative judges, 4 liberal judges and moderate conservative Justice Anthony Kennedy. This balance, with Kennedy as the deciding vote, has served the Supreme Court well and ensures that radical change per conservative or liberal ideology is not forced upon the US. Confirming Gorsuch maintains the status quo and does not upset ideological balance in a branch of government key to checking the power of the other two branches.
Gorsuch’s personal ideology gives me greatest cause for concern. He places value in religious freedom that makes those freedoms seemingly unimpeachable. This causes concern because those religious freedoms are too frequently exercised as a means of escaping the socially liberal laws that protect minorities and women. He is also a textualist, an approach to judicial review that has stifled progressive social change time and again, especially in the Supreme Court.
However, Gorsuch has shown that he is willing to leave his personal beliefs at the door when it comes to his most fervent belief, the sanctity of life. He has been unsympathetic to many appellants on death row seeking clemency through federal courts. Despite his own belief on the taking of human life, he strictly applied the Antiterrorism and Effective Death Penalty Act that tightened the circumstances under which federal judges could grant clemency. Gorsuch’s textualist approach, that demands judges follow the literal letter of the law, may rein in his more conservative beliefs, and suggest he will judge each case individually.
Gorsuch also espouses some causes that garner bipartisan support. He believes in opening up the legal system, so that a citizen would not need a lawyer just to navigate the murky and complicated legal world. Considering he himself was a lawyer while he gave these views, it is admirable he supported saving ordinary people money by removing some of the demand for his own profession. Gorsuch practices what he preaches too. As is a rarity in legal writings, his rulings and journal articles are written in a straightforward and often witty style. This aids accessibility and breaks through the nigh indecipherable legalese often used in his line of work.
There are also pragmatic reasons to confirm him. Under current rules, 60 votes are needed to break a filibuster and call a vote on the confirmation of Supreme Court Nominees. However, there are fears that if Democrats attempt to obstruct Gorsuch’s confirmation, Republicans will use the nuclear option. Mitch McConnell, the Majority Leader in the Senate may have the rules changed, so only a simple majority of 51 is needed to confirm a Supreme Court nominee. Democrats did this in 2013 for federal judges and executive appointments, to circumvent Republican obstructionism. Under the rule change, the Republicans could easily secure the 51 votes to confirm Gorsuch.
However, there are greater stakes at play here. If Democrats force the rule change, and another Supreme Court Justice dies or steps down, Republicans can replace them without having to consult Democrats at all. This will open the door to the youngest, healthiest, and most fervently conservative Justices the Republican Party can find. These liberal hating, anti-abortion and pro-unrestricted gun rights Justices will change the balance of the court for generations, especially if they replace a liberal or moderate conservative Justice. There is a strong argument for Democrats to trade Gorsuch being speedily confirmed, for McConnell’s guarantee not to use the nuclear option. Lose the battle, live to fight another day.
Finally, like many Americans, I’m tired of the obstructionism. The ‘we’ll stop you because we can’ mentality that permeates US politics. As US society becomes more polarised than at any point since the Civil War, politics has been less and less about reaching a compromise with your opponent, and more about stopping them getting anything done. Obstructionism is a failure in democracy. I’ll admit there is a fiercely liberal part of me that wants revenge, for the year of career limbo Merrick Garland was forced to endure and for refusing to do their Constitutional duty because it earned them cheap political points with their base. However, it is that voice saying do not let your opponent get anything done, that has led to millions of Americans becoming disenchanted with politics. Democracy demands compromise. One side must extend the hand of cooperation first and I would be proud of the Democrats for doing so.