The Senate should confirm Neil Gorsuch’s nomination to serve on the Supreme Court. Judge Gorsuch is brilliant. He is a beautiful writer. He is a warm, decent and thoughtful man. And he has the integrity and commitment to the rule of law that a judge must have to stand up for the Constitution in the face of illegal actions taken by other branches of government.
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.
Melissa Hart is the Schaden Chair and a professor of law at the University of Colorado Law School and director of the Byron R. White Center for the Study of American Constitutional Law.
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