SCOTUS Pick Neil Gorsuch Would Be A Disaster For Civil Rights

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Here’s how to fight his appointment.

The protests denouncing President Trump’s Supreme Court nominee Neil Gorsuch began immediately last night.

Led largely by reproductive rights groups concerned about the possibility of Roe v. Wade’s abortion decriminalization ruling being overturned, protesters appeared on the steps of the U.S. Supreme Court Building less than an hour after the Gorsuch announcement.

The road to overturning Roe requires several steps and cannot be done with this one appointment, but Gorsuch’s track record on reproductive health indeed suggests a frightening potential battle ahead. Moreover, Gorsuch has openly denounced the court’s role in advancing civil rights, and has leaned hard right on cases involving environmental protection, LGBTQ rights, disability rights, and police violence.

The concerns of Gorsuch’s opponents, in other words, are well-founded.

Forty-nine-year-old Gorsuch was appointed to the 10th Circuit Court of Appeals in Denver by President George W. Bush. Law professor Melissa Hart, his colleague at the University of Colorado and the director of the Byron White Center for the Study of American Constitutional Law, told SCOTUSblog that if Gorsuch does join the bench, she expects she will disagree with many of his rulings. But she predicts he has the “smarts and intellectual seriousness” to become a “shaper of the court.”

His youth means he could shape the Court for several decades, and it’s no secret the direction he would lean: he’s an “originalist” who idolizes the man he would replace — uber-conservative Antonin Scalia.

People For The American Way protest in front of the United States Supreme Court on the evening of January 31, 2017 (Credit: flickr/Elvert Barnes)

Gorsuch has publicly criticized liberals for using the courts to achieve social justice goals rather than passing laws to do so, and has repeatedly called for limiting the power of federal regulators. It’s no wonder, then, that he appeals to Trump, who spent his first week attempting to reduce/eliminate every regulation he could through executive orders. A Gorsuch put it:

“Judges should instead strive, if humanly and so imperfectly, to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be.”

Translation: Trust the founders, easy on the expansion of civil rights.

Eveline Shen, executive director of the progressive, intersectional non-profit Forward Together, made it clear in her statement opposing the nomination why a justice who has openly criticized expanding civil rights through the courts is so dangerous:

“At a time when the President is attempting to enforce unconstitutional and bigoted executive actions against immigrants and refugees, the checks and balances of a strong judicial branch are needed more than ever. Gorsuch won’t provide that.
Supreme Court decisions play a critical role in our effort to create a more perfect union but the Supreme Court is not a perfect body. The same institution that affirmed our right to access education with Brown v. Board of Education, our right to marry whomever we love with Loving v. Virginia, the right the make decisions about our bodies with Roe v. Wade and our right to vote with Shelby County v. Holder, also created the concept of ‘separate but equal’ in Plessy v. Ferguson. It ruled that the internment of Japanese citizens during World War II was constitutional in Korematsu v. U.S. And it opened the door for a host of state-level anti-abortion restrictions in Planned Parenthood v. Casey.”

Destiny Lopez, co-director of All* Above All, said in a statement that while Gorsuch’s position on abortion specifically isn’t clear, his record of hostility toward contraception makes him a likely threat to all aspects of reproductive health:

“This administration has already made clear their contempt for women’s health, established law, and the protections of the Constitution. And given Trump’s promise to punish women for abortion, we should expect the worst. Any nominee who would overturn four decades of precedent upholding an essential right is unacceptable. Trump has no mandate to stack the court with ideologues who want to take away women’s basic rights, and we implore Senators who would defend women’s health to ask the tough questions and, if necessary, fight this pick every step of the way.”

Unions are also weighing in to oppose the Gorsuch nomination. The Communications Workers of America issued a statement calling on the Senate to do whatever is necessary to block his appointment:

“Judge Gorsuch has a record of aligning with corporate interests, from his career in private practice representing corporations to his decisions as part of the U.S. Court of Appeal for the Tenth Circuit. Working families can’t afford to have Judge Gorsuch making decisions that without doubt will adversely affect our livelihoods and families…He has argued that protecting corporations from litigation is more important than protecting investors from being cheated. He seems predisposed to favor the ‘big guy’ over the ‘little guy.’ That’s not the kind of court America needs.”

Non-profit coalition Alliance For Justice (AFJ), which includes member orgs working for almost every progressive issue imaginable, called Gorsuch “a far-right extremist” and a “disastrous choice…given the president’s repeated demonstrations of contempt for our democratic institutions” who could threaten “well-established Supreme Court precedents and principles of American law and, most importantly, prevent the federal government from properly enforcing countless acts of Congress.”

Their succinct, yet comprehensive fact sheet lists the lowlights of his career:

“Gorsuch is a friend of big business and harms the rights of workers and consumers”
AFJ outlines Gorsuch’s protection of corporate interests and attacks on the rights of employees, with rulings against workers in cases concerning the death of an employee, back pay, sex discrimination, and whistleblowers.

“Gorsuch has demonstrated hostility to women’s right to access reproductive health care”
Among his many transgressions against reproductive health, Gorsuch has ruled against Planned Parenthood because of the falsely alleged sale of fetal tissue and has multiple rulings in favor of the Little Sisters of the Poor, who continue to contend that the birth control accommodation for religious groups in the Affordable Care Act violate their First Amendment Rights. Most famously, he ruled for Hobby Lobby in its effort to deny contraception to employees, upholding the discriminatory Religious Freedom Restoration Act (RFRA) in the process.

Gorsuch ruled for Hobby Lobby in its effort to deny contraception to employees.

“Gorsuch protects police officers who use excessive force”
Gorsuch’s Wilson v. City of Lafayette ruling should be enough on its own to justify opposition to his nomination. In that case, Gorsuch held that — as AFJ describes it — “a police officer was entitled to qualified immunity” when his use of a stun gun killed a young man in 1983. Officers were in an area supposedly known to be used to grow marijuana; the man fled after admitting the plants were his. This “crime” apparently justified the use of lethal force.

“Gorsuch is hostile to commonsense environmental regulations”
Basically, he thinks that federal lands can be used however government officials want, even when those uses are deleterious to local communities and the environment. Considering Trump’s plans for the Dakota Access Pipeline, Keystone Pipeline, and elimination of the climate change page on the White House website, this position of Gorsuch’s could pose particular problems during this administration.

“Gorsuch would not protect the rights of disabled students”
AFJ outlines three rather disturbing rulings in outright defiance of the federal Individuals with Disabilities Education Act (IDEA). He ruled that students have no recourse when their rights under IDEA are violated and that an autistic student didn’t qualify for protections guaranteeing access to an education “that would provide a chance to achieve intellectual and social skills outside the classroom.”

Tl;dr: Gorsuch is awful; don’t believe the conservative party line that he’s a measured, centrist jurist.

For those who are relying on dark, LOLsob humor to get themselves through this terrifying time, behold the connection between Gorsuch and the filibustered Obama nominee Judge Merrick Garland, as explained in the New York Times:

“In a 2002 article reflecting on Justice White’s death, Mr. Gorsuch criticized the Senate’s handling of judicial confirmations. ‘Some of the most impressive judicial nominees are grossly mistreated,’ he said, mentioning two candidates for the federal appeals court in Washington who he said were ‘widely considered to be among the finest lawyers of their generation.’
One was John G. Roberts Jr., who went on to become chief justice of the United States. The other was Judge Merrick B. Garland, who was confirmed to the appeals court in 1997 after a long delay, but whose nomination to Justice Scalia’s seat last year was blocked by Senate Republicans.”

We’re going to need Senate democrats to grow spines en masse, {cringe} take a page from the GOP playbook, and block this appointment for as long as they can. As lawyer/author and Abortion Care Network board member David Cohen told me for a Truthout story, “The Senate is where the battle is for the Supreme Court.”

Some Democratic Senators have already expressed reservations about Gorsuch, and in particular his ability to stand up to Trump and serve independently. But it seems only one, Sen. Jeff Merkley (D-OR), has so far outright refused to confirm Gorsuch, saying:

“If President Trump were serious about healing the divisions in America and undoing the damage wrought by Senate Republicans last year, he could have named Merrick Garland to fill this seat. Instead, he doubled down on division by picking an ideological and extreme nominee to satisfy the far right. This is a stolen seat being filled by an illegitimate and extreme nominee, and I will do everything in my power to stand up against this assault on the Court.”

Despite Trump’s best efforts, we still live in a democracy, and the people of America have the power to push their congresspeople to act. Everyone can call, write, and tweet their senators (find yours HERE) to ask them to publicly oppose the Gorsuch nomination — and don’t forget to thank them if they are already doing so! You can also use NARAL Pro-Choice America’s link to auto-send your senator a message asking them to filibuster if necessary. How long they can do so is unclear, with republicans threatening to change the voting rules (yes, they can do that) so that a simple majority of 51 rather than a filibuster-proof 60 votes are needed to confirm. That uncertainty doesn’t mean we shouldn’t ask our legislators to do the right thing.

“[P]eople need to be laser-focused on calling their senators and making sure that they fight; they need to hear, ‘We want you to stand up against overturning Roe,’” said Cohen, who released a statement yesterday saying that “Neil Gorsuch has all the makings of an extreme anti-abortion Justice.”

‘People need to be laser-focused on calling their senators and making sure that they fight.’

If you live in a select number of states, your calls are particularly important. There are 13 senators up for reelection in 2018 in states that were either won or narrowly lost by Trump: Florida, Indiana, Maine, Michigan, Missouri, Montana, Nevada, North Dakota, Ohio, Pennsylvania, Vermont, West Virginia, and Wisconsin. Those senators need to hear that their jobs are on the line. People represented by Senators Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska) have the unique opportunity to encourage the only republicans known for breaking with their party on reproductive health to do so again and join the opposition.

Most certainly protests will continue, so watch for them in your area. The Court can function with vacancies, as it has for over a year now since Scalia’s death. The longer we can put off seating a Trump nominee, the less chance he has to stack the Court; every day and every case matters.