And now, the moment you have all been waiting for … after much anticipation, we finally know who Trump’s pick to fill the vacancy on the Supreme Court left by the death of Justice Antonin Scalia is: Neil Gorsuch. Now, maybe you have heard of Gorsuch, maybe you haven’t, so let me give you a little brief bit of background on the man and his views, though it should suffice to say he is rich, white, and male, as have most all of Trump’s nominees for advisory and cabinet positions.
Neil McGill Gorsuch is a judge on the United States Court of Appeals for the Tenth Circuit since being appointed by President George W. Bush in 2006. Gorsuch has the typical pedigree of a high court justice. He graduated from Columbia, Harvard and Oxford, clerked for two Supreme Court justices and did a stint at the Department of Justice. He is a conservative, of course, and ruled in the case of Zubik v Burwell, commonly known as the Hobby Lobby case, in which Gorsuch held that the requirement in the Affordable Care Act that employers provide insurance coverage for contraceptives without a co-pay violated the rights of those employers that object to use of contraceptives on religious grounds. His ruling was later overturned by the Supreme Court.
Gorsuch favours the death penalty and is a strict constitutional originalist. A brief explanation of that term may be in order. There are two theories in constitutional interpretation:
- Originalism is the idea that the Constitution should be interpreted from the point of view of the framers who created the document in 1787, and
- Pragmatism is the theory that in the 230 years since the Constitution was written, many changes have taken place in society and the nation that necessitate a broader interpretation
And that, folks, is pretty much all I know about Mr. Gorsuch. You didn’t ask, but I thought the Hobby Lobby decision was a bad one, as it opened the door for a host of other discriminatory Laws on the grounds of ‘religious freedom’. I do not support the death penalty. I believe that the pragmatic approach to constitutional interpretation makes the most sense (I actually have a paper I wrote on this topic for a Constitutional Law class several years back, if anybody is interested … 🙂 ). So, in at least three major areas I disagree with Gorsuch. But then, we didn’t think Trump would pick a candidate who thought like Filosofa, did we?
Trump has made no secret of the fact that his choice to fill this seat would be one who would cast his vote to overturn Roe v Wade, so we must assume that there has already been conversation and agreement on that major issue between Trump and Gorsuch. Again, I disagree on this topic, but nobody asked me.
The process to confirm Gorsuch:
- Referral to the 20-member Judiciary Committee (11 Republicans & 9 Democrats)
- Pre-hearing research where his background and past rulings will be reviewed
- Confirmation hearing
- Committee vote
- Full Senate vote
The only stage where I see a possible stumbling block in the process is the final, the full senate vote. Democratic senators can filibuster and force a 60-vote requirement for confirmation, and there are only 52 Republicans in the senate. Given the fact that the Republicans effectively blocked President Obama’s nominee, Merrick Garland, by refusing to even hold confirmation hearings, the Democrats in the senate are still bitter and not much in the mood to play nice. Senators Chuck Schumer and Jeff Merkley have both vowed to oppose any nominee other than Garland, as have other Senate Democrats. It could be interesting, but I suspect that at the end of the day, Trump will have his way in this as he has everything else in the last 12 days.
“In light of the unconstitutional actions of our new President in just his first week, the Senate owes the American people a thorough and unsparing examination of this nomination. I had hoped that President Trump would work in a bipartisan way to pick a mainstream nominee like Merrick Garland and bring the country together. Instead, he outsourced this process to far-right interest groups. This is no way to treat a co-equal branch of government, or to protect the independence of our Federal judiciary.” – Senator Patrick Leahy, Democratic Senator from Vermont, 31 January 2017
“The Senate should respect the result of the election and treat this newly elected president’s nominee in the same way that nominees of newly elected presidents have been treated.” – Senate Majority Leader Mitch McConnell, 30 January 2017
McConnell was outspoken in his refusal to hold confirmation hearings for Merrick Garland, yet he says this????
The reason the framers of the Constitution made Supreme Court positions lifetime appointments was to shield justices from partisanship. They were intended to be accountable to their consciences rather than an electorate. I am not sure that is the case today, especially in light of this nominee who, undoubtedly was chosen for his political views. Assuming he is confirmed, the Supreme Court will then consist of 4 liberal-leaning justices, 4 conservative-leaning, and 1 moderate (Anthony Kennedy). With this composition, I think it unlikely that Trump will get his way and see Roe v Wade overturned quickly. The danger comes later, if Ruth Bader Ginsburg, who is 84, and Anthony Kennedy, age 81 decide to retire before Trump leaves office. If he has the opportunity to appoint two more justices, then all bets are off. Stay tuned …