Columns » Jay Barth

Resist Gorsuch



Barring the bizarre, Judge Neil Gorsuch will become one of the nine members of the U.S. Supreme Court by the time the court reconvenes for its new term in October. Those who oppose Gorsuch's nomination either because President Barack Obama was inappropriately blocked from filling the seat with a mainstream appointee or because Gorsuch's own writings suggest that he may well be outside the mainstream of modern constitutional jurisprudence on key issues must be clear-eyed about this reality. However, there are strong arguments for energetically contesting the Gorsuch nomination despite the probable result.

Gorsuch's relative youth, his conservative lineage tracing back to his mother's controversial role in the Reagan administration, his allegiance to originalist interpretation and his personal fondness for the man he would replace — the late Justice Antonin Scalia — all create enthusiasm among GOP loyalists who held their nose to vote for President Trump because of the salience of the future of the Supreme Court. Perhaps most importantly, while Scalia had a keen knack for pushing away those in the middle of the court whose votes he needed to transform jurisprudence, Gorsuch evidences an affability and, even more importantly, a personal warmth with one of those whom Scalia savagely disparaged — Justice Anthony Kennedy — that gives conservatives a real hope that he will be more effective in more permanently shifting jurisprudence to the right than was the edgy Scalia.

For a man on the federal bench for a decade, Gorsuch has also written relatively little on the hottest-button constitutional issues of gun control, abortion or LGBT rights, taking away opponents' ability to roast the nominee with his own words. Still, Gorsuch's commitment on conservative constitutional views is unwavering:

His opinion in the Hobby Lobby case argued that the Affordable Care Act's requirement that the company ensure access to certain birth control procedures "substantially burdened" Hobby Lobby's religious liberty by making it "complicit" in a moral wrong. Combined with Gorsuch's unwillingness to question the sincerity of the corporate leaders' beliefs, this ruling sets the stage for a complete undermining of any generally applicable laws that "burden" anyone's religious beliefs (and, name one that doesn't).

His arguments against the legalization of euthanasia and assisted suicide grounded in the unbending view that "all human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong" has clear implications for the future of abortion law on the court.

His concurring opinion in Riddle v. Hickenlooper, a campaign finance case from Colorado, voiced a view of campaign contributions as a "basic constitutional freedom" inherently linked to freedom of speech and association that suggests an aversion to even minimal campaign finance reforms.

Thus, in many respects, Gorsuch is a perfect conservative nominee for the court and rewards the obstructionism of the closing months of the Obama era on Judge Merrick Garland's nomination.

Liberal activists, who are legitimately concerned about Gorsuch but also realize — as a replacement for Scalia — he does not shift the balance of power, are debating how aggressively to fight the Gorsuch nomination. My answer: a drawn out fight, but not a battle to the death.

All aspects of the nomination should be strung out as long as possible. There is penance to be done for the horrific treatment given Garland and Obama by the GOP-controlled Senate. There is also the small possibility that aspects of Gorsuch's past might come to light from an "extreme vetting." While veterans of the conservative Federalist Society will engage to prepare Gorsuch fully for his Judiciary Committee hearing (in strong contrast to the haphazardly prepared Trump nominees for Cabinet posts), it is also possible that he could stub his toes under questioning during what will be high-profile hearings. Thus, a judge who looks "perfect" at the moment could look decidedly more imperfect as time passes.

More important, in the months ahead, progressives should carry out a practice run for a future nomination battle that truly does promise to fundamentally tilt the majority on the court on issue after issue. It is crucial to note that it has been over a quarter century since there has been a closely fought battle over a Supreme Court nomination. Since Clarence Thomas eked out confirmation in 1991, no nominee has gotten fewer than 58 votes in the Senate. That was the era of network television ads, and the technological landscape has changed dramatically since that time, providing little evidence for what are effective methods of challenging a nomination in the world of social media. Progressive advocacy groups should use the coming months to determine the tactics, issues and messages that move activists to engage on nominations and, more importantly, to collect data so that these activists can be immediately activated into opposition in the future.

But no matter how much harm Gorsuch could do to progressive ideals during his decades on the court, at the end of the day it is worth avoiding the "nuclear option" that would immediately reduce the number of votes needed to confirm a Supreme Court to a bare majority. No matter how well prepared progressive activists are for a future battle, the continuation of a 60-vote threshold for cloture may save them from a generation-long conservative majority on the court.

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