I write this as a Democrat, well aware that there should not even be an open seat on the court at this moment. Judge Merrick Garland — also a brilliant, decent and thoughtful man — should have been confirmed months ago to fill the seat that has been empty for almost a year. The fact that he never was is an outrage. Republicans broke the system with their political power grab, and the fact that they have not been held accountable for their complete disregard for the Constitution and the institution of the Court makes me angry every time I think about it.
Democrats should not respond by continuing the carnage. The Senate has a constitutional duty to consider presidential nominations and offer “advice” and, if appropriate, “consent.” It has abandoned that duty for the past year, but unless we intend to jettison the Constitution indefinitely, that should not continue. I don’t know if or how our justice system will bounce back from the damage done to it by the Republican Senate. But it will never bounce back if the confirmation of a respected and qualified jurist like Gorsuch is held up. Instead, Republicans will eliminate the filibuster for Supreme Court nominations and the selection of judges — both for the Supreme Court and for the lower federal courts — will forever be a purely partisan process.
I am certain that Gorsuch will write and join opinions that I and other Democrats will disagree with. He already has. But that would be true of any nominee put forward by Trump, who made it clear during his campaign that he would only select conservatives for judicial positions. The choice the Senate faces in this nomination is not a choice between Gorsuch and Garland. It is a choice between Gorsuch and blowing up the system.
And there’s no evidence in Gorsuch’s record to warrant blowing up the system to keep him off the court.
Yes, many liberals are concerned about some of his opinions. In the Hobby Lobby case, for example, Gorsuch joined the Tenth Circuit’s holding that corporations could refuse to comply with the contraceptive mandate in the Affordable Care Act because of an asserted sincerely held religious belief. In that case, Gorsuch wrote a separate opinion to emphasize his view that courts should generally not question the sincerity of an individual’s asserted religious beliefs.
Some of his critics fear that these decisions give us a window into how a Justice Gorsuch would rule when confronted, for example, with a case in which a business owner claimed a First Amendment right to deny service to a gay couple seeking marriage-related services. They may indeed. But importantly, the lawsuits currently being brought by business owners around the country are First Amendment challenges, and the Hobby Lobby case was brought under the federal Religious Freedom Restoration Act. The First Amendment’s protection of religious liberty is different from the protection accorded in the statute. Gorsuch has written numerous opinions in a variety of contexts recognizing the importance of distinguishing the standards set forth by difference sources of law. Whether he will apply that principle in this context remains to be seen, but there is no reason to assume at this point that he will not.
Critics have also cited Hobby Lobby, together with Gorsuch’s authorship of a book critical of euthanasia, as evidence of how he will rule on cases involving reproductive freedom. Here, again, there is not enough evidence to reach a judgment yet. Certainly, Gorsuch has generally been a consistent conservative, and it will not be surprising if he takes a narrow view of the right to privacy and the related right to reproductive autonomy.
But again, any Trump nominee would do the same. And I see room for some cautious optimism in Gorsuch’s approach to cases. First, he cares about procedure. His decisions reflect close attention to whether and when the attorneys in appeals raised their arguments and whether that might limit the scope of the issues on which the court can rule. He has declined to address questions because they were not properly raised and presented. The current conservative bloc on the Supreme Court has been all too willing to reach out for cases that are not properly presented or to extend the scope of their rulings well beyond what the case calls for to reach particular results on substantive issues. We saw this overreaching in Fisher v. University of Texas, where the court reached out twice to take a case with significant standing and mootness concerns because conservative justices hoped to end affirmative action. Or in Ricci v. DiStefano, an employment discrimination case in which the five-justice majority took the unprecedented step of not only reversing a summary judgment decision, but then proceeding to grant summary judgment for the other side, digging through the record and reaching the kinds of factual conclusions generally preserved for trial courts. For those who worry about this kind of conservative judicial activism on the Supreme Court, Gorsuch’s respect for procedure should be a welcome quality.
Second, Gorsuch has written recently about the need for the judicial branch to act as a check on an overreaching executive. In the 2016 case Gutierrez-Brizuela v. Lynch, which considered the relationship between judicial decisions and administrative interpretations of a statute, Gorsuch wrote separately to emphasize the importance of separation of powers and the central role of the judiciary to operate as a check on excessive executive power. We should all take some comfort in this recognition. This is most certainly a time when the judiciary will need to stand strong as a check against overreaching by the executive branch.
Of course, if confirmed, Gorsuch is likely to serve on the court for many decades. It may be that limitation on executive power will seem less important in four or eight years. But this is an area where principled people of all political stripes have to agree that a single standard must be applied to all. The Supreme Court applied a critical eye to President Barack Obama’s executive actions. It should apply the same rigorous analysis to Trump. The little evidence we have suggests that a Justice Gorsuch would not be cowed by the president who appointed him. Instead, like Justice Robert Jackson — whom Gorsuch specifically mentioned in his nomination remarks and who wrote a dissent in the infamous Korematsu decision — a Justice Gorsuch will require that the White House recognize we are a government of laws and not of men.