The Supreme Court nominee could backfire on the president
The Short Version
The 45th president announced his Supreme Court nomination last night, 10 circuit appeals court judge Neil Gorsuch. Gorsuch is a conservative who says he tries to emulate the late Antonin Scalia, whose seat he takes on the court. However, if Gorsuch’s writings forecast how he might vote, the president could be surprised with the outcome.
What We Know Now
The White House tried to hype the announcement of the president’s Supreme Court nominee as though it were a game show finale. Media was led to believe that two finalists were being flown in and that the “winner” would be announced live on primetime television. That wasn’t what happened.
Instead, the announcement was quite routine, to the point of almost being boring. Gorsuch had been the front runner all through the vetting process. He was the only person standing with the president when the announcement was made. Gorsuch made the obligatory speech where he recognized the solemn duty of the high court and promised to uphold the Constitution. We would have been deeply disturbed had he said anything else.
What happens now, though, is something most of us couldn’t survive. Senator’s interns and legal assistants started immediately last night digging through everything that Gorsuch has ever written and every decision in which he has had a part. They are looking for anything that might indicate he could spell trouble for the court. If Republicans find that he might not hold to their values, they can kill the nomination before it reaches the full Senate.
They’re not likely to find anything that will immediately unseat Gorsuch’s nomination, however. Gorsuch clerked under two Supreme Court justices, including justice Stephen Kennedy who still sits on the high bench. In addition to his Harvard Law degree, Gorsuch holds a doctorate in philosophy from Oxford University. His writings are carefully thought out, not hot-headed and incendiary like those of the late justice Scalia. One isn’t likely to find any serious gaffes or extreme reasoning.
For Republicans, there’s the fact that Gorsuch ruled in favor of Hobby Lobby in a case that allows privately-owned for-profit businesses to base policy on the owner’s religious beliefs. There’s little question that Gorsuch holds religious liberty high through several of his writings and rulings. However, Gorsuch has not been vocal on matters related to abortion or LGBTQ rights, two issues on which he might one day have to rule. In fact, he’s been completely silent on both matters.
Democrats are likely to take a strong look at Gorsuch’s opinions related to government agencies interpreting the Constitution. He has written that such rulings, “permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.” He’s not alone in this opinion. Justice Clarence Thomas holds similar views. The end result could well be that the two could convince the other judges to limit the authority of the president and federal agencies.
A couple of other things worth noting: Gorsuch would be the only protestant on a court dominated by Catholics. Gorsuch is Episcopalian, which tends to tilt to the left in religious teachings. His mother, Anne Gorsuch Burford, was head of the Environmental Protection Agency under President Reagan, which could have some lasting influence in his opinions related to environmental concerns.
There is little question that a fight is brewing. Democrats are still pissed that Senate leadership wouldn’t even consider President Obama’s nominee last year. They’ve already said they don’t view Gorsuch as being “mainstream” enough to fill the position and are likely to block his nomination through any means possible.
At the same time, a conservative group is planning to spend roughly $2 million on ads in Indiana, Missouri, Montana and North Dakota, four states that Trump won and in which Democrats will be defending their Senate seats in 2018.
To some degree, whether Mr. Gorsuch is qualified to sit on the high court is irrelevant. This is political. It’s not the way the framers of the Constitution intended, but it is the reality of this Congress and this administration. Politics are what matters now and that will be what determines whether Gorsuch is confirmed for the bench.
Strap yourselves in. The fun is just starting.