Since the death of Justice Antonin Scalia in February 2016, his seat on the Supreme Court has remained vacant. After the GOP-led Congress denied former President Barack Obama’s nominee for the seat — Merrick Garland — a confirmation hearing, Obama’s time to get a Democrat onto the Supreme Court ran out.
In one of his first major acts as president, Donald Trump nominated Colorado appellate judge Neil Gorsuch to fill the seat. In another Republican-majority Congress, there is more hope for Gorsuch’s confirmation. With the Senate Judiciary Committee expected to send the nomination to the full Senate on Monday, Senators could reach a final decision by the end of the week. But, depending on what the Democrats decide to do, the path to the bench is not yet completely clear for Gorsuch.
This is one part of a point-counterpoint focusing on liberals views on the Gorsuch nomination. Read the other side by columnist Christian Snyder here.
Remember that whole Hobby Lobby debacle in 2013?
Former appellate Judge Neil Gorsuch ruled in the 10th Circuit on whether the craft store Hobby Lobby had to provide birth control to employees under Obamacare provisions in 2013. The owners of Hobby Lobby argued this violated their Christian faith, and Gorsuch ruled in their favor, an opinion the Supreme Court later upheld — and an idea directly in contrast with Democrats’ pro-contraception platform.
Fast-forward to today and Gorsuch is Trump’s nominee to fill the yearlong vacancy on the Supreme Court.
Not only do Gorsuch’s views not reflect the values of the Democratic Party, but his appointment would also set a dangerous precedent for the future of Supreme Court nominations and the power of senators in that process.
Democrats in Congress — 36 to be exact, including Pennsylvania Sen. Bob Casey — have voiced their opposition to Gorsuch’s nomination. If five more Democrats also decide to vote no, they can filibuster his nomination. It is imperative for Democrats in the Senate to get those five no votes.
This isn’t to say Gorsuch isn’t a qualified candidate for the position. He graduated Harvard Law School in 1991, alongside former President Barack Obama, and holds degrees from Columbia and Oxford. He also clerked for two Supreme Court justices, Byron White and Anthony Kennedy, and has sat on the 10th Court of Appeals in Colorado since 2006.
But several of Gorsuch’s decisions on that court — including the Hobby Lobby decision and a 2008 ruling that absolved a school from making accommodations for an autistic student — should worry Democrats concerned about the future of landmark Supreme Court cases.
During his confirmation hearing, Gorsuch didn’t give a straight answer to the question of whether corporations should be allowed to donate to political campaigns in secrecy. He did worry, however, that forcing corporations to disclose their donations would “chill expression” from businesses, discouraging future contributions.
Statements like this suggest Gorsuch would uphold the Supreme Court’s controversial 2010 Citizens United ruling, which allowed nonprofit companies to contribute unlimited amounts of money to political campaigns. Overturning Citizens United is an imperative goal for Democrats as working to get money out of politics has been an integral part of their platform since that ruling.
Democrats shouldn’t support a nominee with whom they fundamentally disagree with, especially when the job is a lifetime position — that’s a clear argument based solely on political party beliefs. But what is perhaps even more important is the argument about precedent when it comes to Gorsuch.
When Obama nominated Merrick Garland to the Supreme Court in March 2016, Republicans in the Senate invoked an idea dubbed “the Biden rule.” Derived from a statement made by the former Vice President while he was a Senator, the Biden rule postulates that a Supreme Court justice shouldn’t be appointed in the last year of a president’s term. The GOP used this rule to justify their refusal to hold a hearing for Garland.
Article 2 of the Constitution explicitly states Supreme Court nominees must be confirmed “with the advice and consent of the Senate.”
Democrats opposing Gorsuch may want to prevent him from getting to the Supreme Court, but at least they did their duty and granted him a hearing. The GOP, on the other hand, shirked its constitutional duty by refusing to hold a Garland hearing outright.
If Gorsuch is confirmed and takes a seat on the bench of the highest court in the land, it will set a new precedent — where one party can ignore constitutional process and suffer no repercussions. Democrats need to stand united in opposition to Gorsuch to protect the integrity of the nomination process for the future.
Ultimately, this means we may be stuck with an eight-person Supreme Court for the foreseeable future. As a 4-4 split on the Supreme Court means the case is sent back to lower courts, the only effect of this vacancy will be that the most controversial cases will be decided elsewhere. Considering the Supreme Court cases that may result from Trump’s immigration policies, among others, a split court would be far preferable to Democrats than one leaning to the right.
The Gorsuch nomination is a test for Senate Democrats. How they vote today will set a course for the judicial future of America. Hopefully, Gorsuch will be absent from that future.
Nick primarily writes on politics and American culture for The Pitt News.
Write to Nick at [email protected].