Compared with some of the provocatively, even outrageously unsuited people whom President Trump has chosen for high office, Neil Gorsuch barely moves the needle. But that’s not to say Americans concerned about safeguarding the institutions of democracy should be heartened to see Gorsuch ascending to the U.S. Supreme Court, as almost assuredly he will.
There never was any doubt that Trump would nominate a conservative to fill the high court’s vacant ninth seat – the seat that came open upon the death of conservative icon Antonin Scalia a year ago. Trump repeatedly cited Scalia as the model for the sort of Supreme Court justice he intended to pick.
Gorsuch – a member of the federal appeals court based in Denver – fills the bill in his Scalia-esque belief that judges should interpret the laws and Constitution in strict accord with the intent of those who wrote them and with their plain texts. Notably, there should be no conjuring up of freshly discerned rights. A judge who hews closely to that principle of “originalism” isn’t likely to come down on the side of same-sex couples seeking to uphold their right to marry, just to mention one example of how this judicial perspective can affect people’s everyday lives.
In tone and manner, Gorsuch presents a contrast to the fiery Scalia, who relished no-holds-barred intellectual combat with the forces of liberalism, including some of his Supreme Court colleagues who became targets of his scorn. That hasn’t been the way Gorsuch operates. He apparently doesn’t regard compromise as a dirty word.
Still, the nominee, who stands as Trump’s most significant personnel choice yet, is enthusiastically backed by groups eager to restore the 5-4 court majority that conservatives enjoyed while Scalia was alive.
Those advocacy groups, including the Heritage Foundation and the Federalist Society, apparently are confident Gorsuch will become a reliable vote as the court continues to wrangle with a range of hot-button issues – for instance, the rights of immigrants, refugees, transgender people and religious evangelicals; regulations meant to counteract climate change; challenges to laws that restrict access to the polls.
Tar Heel focus
North Carolina, which seems to generate more than its share of high-profile disputes that wind up before the Supreme Court, has an outsized stake in the selection of Scalia’s successor.
The state’s politics have been roiled by major controversies over voting rights and the drawing of election district boundaries. Lower federal courts have upheld challenges filed against laws enacted by the Republican-controlled General Assembly – finding that a sprawling rewrite of voting rules amounted to unconstitutional voter suppression and also that legislators discriminated against racial minorities in drawing congressional and legislative districts.
The Supreme Court hasn’t yet spoken to either set of cases. With the court’s current 4-4 ideological divide, a tie vote means that lower court rulings stand – so North Carolina’s voting rights advocates and allies including the Council of Churches have been in the driver’s seat on these issues. When Gorsuch joins the court, that could easily change. That is, if the new justice isn’t bothered by restrictive voter ID laws or by gerrymandering that devalues the votes of racial and/or political minorities (Democrats, of course), and if a swing justice doesn’t materialize elsewhere among the court’s conservative bloc.
As it happens, Gorsuch served as a clerk for Justice Anthony Kennedy, a Republican appointee who from time to time has swung away from conservative orthodoxy – for example, in supporting gay marriage rights.
If North Carolina’s bitter argument over the notorious House Bill 2, with its broadly discriminatory stance toward the transgendered, gays and lesbians, makes its way to the high court, eyes again will turn to Kennedy as possibly the pivotal vote in defense of LGBT rights. Might Gorsuch follow his former boss’s lead at least in the search for some middle ground, if such a search were to take place? Perhaps that would become an indicator of just how determined he is to uphold Scalia’s legacy.
Votes in the balance
As Trump has moved quickly to fill top administration posts, he has pushed if not pulverized the envelope with several of his choices. Oklahoma attorney general Scott Pruitt, vehement critic of the Environmental Protection Agency, is a ludicrous pick to run that organization. Republican Sen. Jeff Sessions of Alabama, attorney general-designate, makes civil rights advocates’ flesh crawl. Betsy DeVos, school privatization champion, doesn’t belong anywhere near the Department of Education.
Gorsuch, by contrast, is not someone whose qualifications simply don’t pass the smell test. He is well-educated, well-experienced and well-regarded by those with whom he has worked. As a selling point to Republican senators whose votes will be needed to confirm him, he has a track record demonstrating his conservative bona fides.
If the Senate follows its normal practice, he’ll need the support of 60 of its 100 members. So if all 52 Republicans are on board, that means eight Democrats would have to go along as well.
They will be strongly tempted to resist – not only in disagreement with Gorsuch’s judicial philosophy, but in protest of the Republicans’ refusal to consider President Obama’s nomination of moderate Judge Merrick Garland to succeed Scalia. In essence, that refusal denied Obama a Supreme Court appointment that should have been his – what with Scalia’s death coming 11 months before Obama’s term ended.
On the hot seat
Democratic senators on the Judiciary Committee can be expected to grill Gorsuch on his views, probing for indications that his conservatism would play into the hands of big corporations, big political donors, the prejudiced and the xenophobic. That’s exactly what they should do.
They also should draw him out regarding his expressed wariness of executive overreach. Surely the Supreme Court eventually will consider challenges to the kinds of overreach that Trump already has embraced – for example, with his executive orders limiting travel from several predominantly Muslim countries.
In the end, though, Senate Democrats will have to decide whether Gorsuch – as conservative as he is — falls within the ill-defined judicial mainstream. If the answer is yes, then to continue to try to block him would be to engage in the same kind of obstructionism that their Republican counterparts used against Garland. And it would be futile anyway, because the Senate’s Republican majority can change the rules to enable Gorsuch’s confirmation with no Democratic support at all.
At 49, Gorsuch would become the youngest Supreme Court justice. Depending on whether Trump gets to fill more seats, Gorsuch could become the anchor of a reinvigorated conservative majority on the court that prevailed for many years. Politically, the president has made a smart choice. Those of us who would have preferred Merrick Garland, for example – or presumably any nominee that Hillary Clinton might have chosen – can only hope that Gorsuch is not so hidebound in his “originalism” that he is willing to see the rights of ordinary Americans trampled at the behest of the selfish, the power-hungry and the cruel.