The Senate hearings for Neil Gorsuch ended today, and Republicans are already congratulating themselves for getting such a far-right justice after refusing to even speak to Merrick Garland, President Obama’s nominee almost an entire year before the end of his second term. “Unreasonable” and “obstructionist” are two popular terms from the conservatives who completely ignored Garland for almost a year while they claimed that Supreme Court justice decisions should never be considered during a campaign season. Yet the United States is in the midst of a campaign season: Dictator Donald Trump (DTT) declared his 2020 candidacy on the day of his inauguration, and he’s already holding rallies funded by his campaign donations.
Even worse, the evidence keeps piling up that DDT was not legitimately elected to his current office following testimony by FBI director James Comey and other reports from intelligence agencies. The strong suggestion of an impeachment for DDT began swirling even before he was inaugurated, and the daily occurrences of his conflicts of interest make the length of his term even more tenuous. Further, DDT’s behavior is make the United States increasingly unstable.
Just 45 percent favor Gorsuch’s nomination’s nomination for the Court, the lowest level of public support for a Supreme Court nominee since Robert Bork (31 percent) and Harriet Miers (44 percent). Even the Fox poll could find only a 49 percent approval for Gorsuch, and approval among women was only 42 percent. The Senate rejected Bork, and Miers withdrew under intense criticism. Gorsuch’s glib charm will almost surely not have the same result for him as Bork and Miers, but he’s no more deserving than they were.
Gorsuch’s philosophy as shown in Chevron is that unelected judges should have far more power to strike down regulations, a belief extremely popular with Republicans. He believes in blocking agencies from writing regulations that implement congressional laws signed by the president as shown by his opposition to a long-standing legal doctrine tried in a case involving Chevron. Even Antonin Scalia supported the importance of regulations that allow “flexibility, and appropriate political participation, in the administrative process.” Gorsuch wrote that liberals are focused on achieving goals, such as marriage equality, through litigation, but like other conservative judges, he supports the use of corporation lawsuits to strike down laws they oppose. The chart below shows that the only current justice farther right than Gorsuch is Clarence Thomas, but his rulings and writings may show that he’s even more right. Justice Thomas voted this week to overturn one of Gorsuch’s rulings.
Republicans are obsessed with replacing Antonin Scalia with an even more far-right justice. They conveniently forgot that they replaced Thurgood Marshall, one of the finest justices in history, with Clarence Thomas, who is severely flawed with conflicts of interest and other issues while he votes as far right as possible. The only “replacement” that Republicans made was choosing another man of color in Thomas.
Gorsuch’s history shows that he attacks women’s equality by putting employers’ preferences ahead of women’s rights, failing to protect women from pregnancy discrimination, eliminating women’s access to health care, and even denying women access to justice. During a discussion in Gorsuch’s law class, he said that employers should ask female applicants if they plan to start a family because women manipulate maternity leave policies at the company’s expense before resigning—a flagrantly illegal action. In the hearings, Gorsuch first denied saying this but then refused to state whether questioning women and not men about plans for adding to the family would violate the law.
In his writings, Gorsuch has argued against the legal principals of Roe v. Wade and disagrees with the right to privacy allowing legalized abortion. Removing that right removes constitutional rights for individuals to make decisions about sex, reproduction, and marriage. Gorsuch tends to bar women from litigating discrimination claims, going so far as to ignore U.S. Supreme Court precedent in his refusal. When he did take a case of sexual harassment, he ruled that it didn’t exist because the manager was also hard on the men—although UPS drivers testified that the manager was worse on the only female on the team.
Gorsuch’s opposition to substantive due process shows that he disagrees with the Supreme Court’s affirmation that a person’s right to liberty also protects their dignity, to life free of interference and to making personal decisions free of discrimination. As an “originalist,” he believes that this right is not in the Constitution although SCOTUS has disagreed with his position. Gorsuch prefers equal protection which denies medical aided death because of his belief in an inalienable right to life. The right to dignity was the basis for Justice Paul Stevens’ dissent to upholding Georgia’s anti-sodomy laws in Bowers v. Hardwick. Stevens maintained that federal judges have the responsibility to protect an individual’s right to decide “how he will live his own life.” Justice Anthony Kennedy used Stevens’ dissent to overturn sodomy laws in Lawrence v. Texas and to declare marriage equality in United States v. Windsor and later in Obergefell v. Hodges. Gorsuch could attempt to overturn these rights as well as Roe v. Wade because he doesn’t believe in “dignity.”
As part of the GOP culture of cruelty, Gorsuch ruled that a truck driver should die rather than leave his rig in sub-zero weather, that a woman recuperating from a bone marrow transplant should risk getting the flu rather than work from home for a short time, and that disabled children don’t deserve an education. He called the botched execution of Clayton Lockett in 2014, leading to a prolonged painful death, an “innocent misadventure” when he ruled that Oklahoma should continue its untested lethal injection protocol. He also wrote two separate opinions against blocking felons from possessing guns.
An examination of Gorsuch’s cruel votes shows that he almost always sides with the “big guys”—corporations and school systems rather than individuals. His strong support for corporations may come from his associates in his personal life. A lawyer at a Washington law firm in the early 2000s, Gorsuch represented Philip Anschutz and his companies. Anschutz successfully lobbied Colorado’s lone Republican senator and the Bush administration to get Gorsuch onto the federal appeals court in 2006. Now a multi-millionaire, Gorsuch is welcome among that wealthy at Anschutz’ ranch, and he is partners in a company with two of Anschutz’ colleagues. They are so close that Gorsuch has built a vacation home with them.
What Gorsuch says in the hearings means very little because GOP-supported candidates show that their answers mean nothing. Asked in his hearing about the right to vote being “a fundamental constitutional right,” Chief Justice John Roberts said, “It is preservative, I think, of all the other rights.” He said he had no issue with upholding the Voting Rights Act that he gutted eight years later. He also said, about having no agenda, “Judges are like umpires. Umpires don’t make the rules, they apply them.” That was before he pushed the court to the right in outlawing school integration, blocking Medicaid expansion, and allowing—not once but twice—unlimited secret corporate spending for political campaigns.
In the hearings, Gorsuch talked about judicial modesty and not being a “super-legislator,” but his rulings show that he has tried to establish law in ruling against employees in cases involving federal race, sex, age, disability and political discrimination and retaliation claims. In a count, it’s corporation 21, humans 2. There’s a very good reason that big special interests are spending millions of dollars in dark money to push his confirmation.
Republicans praise Neil Gorsuch because he writes well and concisely, because he calls himself a textualist or originalist, and because he votes for big business, big donors, and big bosses. He was hand-picked by the far-right Federalist Society and the Heritage Foundation and has close ties to a conservative billionaire. These are all reasons that he should be opposed. It was rumored that some Democrats would vote to confirm him in exchange for a promise from the Republicans to keep the filibuster for Supreme Court justices. The argument that another candidate might be worse than Gorsuch is invalid because he’s on the far-right edge of current Supreme Court justices’ ideology. In addition, the GOP is not known for keeping its promises.
Keeping the filibuster is of no value if Democrats don’t use it. Democrats should live up to the party’s values and not support a Supreme Court justice who is anti-woman, anti-LGBT, anti-worker, anti-voting rights, anti-education rights, anti-civil rights, and anti-dignity. I want Democrats to develop the same “intestinal fortitude” as the far-right House Republicans who refuse to vote for the new health care act even after the president threatens them with losing their next election. I disagree with the views of these GOP representatives, but I want Democrats to stand for their values in the same way that these conservatives are doing.
Gorsuch will probably be a Supreme Court justice, but Democrats should not be complicit in putting him in that position.