The Washington PostDemocracy Dies in Darkness

Opinion Yes, Democrats should filibuster Gorsuch. His record shows why.

Supreme Court nominee Neil Gorsuch. (Ricky Carioti/The Washington Post)
Placeholder while article actions load

The Republican theft of the Supreme Court proceeded apace this week. By any rational measure, we should be in the middle of Merrick Garland’s first year on the Supreme Court. Republicans’ unprecedented refusal to even give Garland a confirmation hearing would be reason enough for Democrats to filibuster President Trump’s nominee, Neil Gorsuch. But even if circumstances were normal, Democrats should be eager to filibuster Gorsuch anyway. Judge Gorsuch’s record suggests Justice Gorsuch would favor powerful interests over regular people — perpetuating a system that voters oppose.

A survey of Gorsuch’s record shows that when he has broken with his colleagues, it is usually to favor businesses over workers. He dissented in the “frozen trucker” case, where the majority agreed that a company could not fire a driver for unhitching his cargo to search for help in subzero temperatures. In his dissent, Gorsuch argued that protections for a worker “refusing to operate his vehicle” in unsafe conditions did not cover unhitching a trailer. In 2011, he dissented from a ruling to affirm a Labor Department fine of a company that had not offered adequate safety training to a worker, which resulted in the worker’s death by electrocution. Just last year, he argued in a dissent that the National Labor Relations Board could not order $100,000 in back pay for hospital workers whose hours had been illegally reduced.

The filibuster with an asterisk

It’s no surprise then that Gorsuch’s writings show a broad preference for corporations over consumers and regulators. Not only would he overturn the Chevron decision — which requires courts to defer to agencies’ interpretations of statutes — but he supports a return to 1930s-era limits on the power of those agencies. This would jump-start Stephen K. Bannon’s “deconstruction of the administrative state.” He has also been critical of class-action lawsuits as a litigation method and appears to follow Justice Antonin Scalia’s footsteps in favoring businesses’ growing use of arbitration clauses in contracts and user agreements to sidestep consumer protection laws. Taken together, Gorsuch’s views would strip away key protections for American workers and consumers, especially minorities and the poor.

Gorsuch’s record cuts against Americans’ civil rights as well. He was part of a ruling against a transgender woman whose employer had barred her from using the women’s restroom for “safety reasons.” He dissented from a ruling blocking Utah’s governor from withholding Planned Parenthood’s federal funding. And a Stanford Law Review summary of his record on civil rights cases said, “Gorsuch has erected and heightened hurdles for civil rights plaintiffs.”

Let there be no mistake: Despite his protestations that there are no Republican or “Democrat” judges, Gorsuch was deliberately chosen for his legal and political views. According to the New York Times, Trump gave “wide discretion” in building a list of Supreme Court nominees to leaders from the conservative Federalist Society and the Heritage Foundation. The “more public part of the push” for Gorsuch has been run by Carrie Severino, chief counsel for the Judicial Crisis Network, which has ties to the Koch donor network. Gorsuch is “their first test case” for remaking the judicial branch.

Democrats are going to filibuster Gorsuch. It’s the right thing to do.

If Senate Majority Leader Mitch McConnell wants to “go nuclear,” Democrats should force him to do it on ground of their choosing. The 2016 election showed that voters on both sides are fed up with a system that they feel ignores their voices. Gorsuch would be another vote on the court to preserve that system. Democrats on the Judiciary Committee such as Al Franken and Amy Klobuchar of Minnesota have done a good job attacking Gorsuch on his corporate-friendly record. Now it’s up to the broader caucus to follow through.

There is no doubt that, by traditional standards, Gorsuch is qualified for the Supreme Court. But the “qualified” standard went out the window when Republicans ignored the even-more-qualified Merrick Garland. Moreover, a bad ruling’s real-world impact is not lessened because justices had the right “qualifications.” Simply put, Gorsuch on the Supreme Court will be bad for ordinary Americans. Democrats are right to want this fight.