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Neil Gorsuch
Supreme Court of the United States
On February 1, 2017, President Donald Trump nominated Neil Gorsuch, a judge on the United States Court of Appeals for the Tenth Circuit, to fill the vacant seat on the Supreme Court.
To aid the Senate—and the public—in its task of evaluating this nomination, this report assesses Judge Gorsuch’s judicial record, outlook, and views about the law. Importantly, in considering his record—as with any nomination for a lifetime seat on the judiciary—it is not the Senate’s job to merely rubber stamp a nominee based on a review of a resume or academic record. The Supreme Court at any time, but particularly now, is essential in protecting our rights. It is vital that anyone confirmed to the Court has a demonstrated commitment to ensuring that the Constitution and our nation’s laws protect all Americans. Thus, the Senate must carefully examine the nominee’s record to ensure our nation’s next Supreme Court justice shares a commitment to critical constitutional values and legal protections and can be a fair and open-minded jurist.
Alliance for Justice has reviewed an extensive portion of Judge Gorsuch’s record—most notably cases, but also writings from the period before he joined the Tenth Circuit as well as during his tenure as a judge. The report focuses primarily, although not exclusively, on cases that split the court. We have not, however, reviewed decisions he made while serving at the Department of Justice; papers from this period of his career have not been made public.
After a thorough review of his record, the primary conclusion is that, on the merits, Judge Gorsuch is not qualified to serve on the Supreme Court.
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Judge Gorsuch a “Disastrous” Choice for SCOTUS
On February 13, 2016,
Justice Antonin Scalia died, creating a vacancy on the United States Supreme
Court. Approximately one month later, on March 16, 2016, President Barack Obama
nominated Merrick Garland, Chief Judge of the United States Court of Appeals
for the D.C. Circuit, to the Supreme Court.
Despite bipartisan
praise for Judge Garland, Republicans in the Senate refused to consider and act
on his nomination. Instead, the Republican Senate Majority Leader Mitch
McConnell went public within hours of Justice Scalia’s death with a statement
that no nominee would be considered for the seat until after the presidential
election. On January 3, 2017, pursuant to Senate rules, Judge Garland’s
nomination was returned to the President. And, on February 1, 2017, President
Donald Trump nominated Neil Gorsuch, a judge on the United States Court of
Appeals for the Tenth Circuit, to fill the vacant seat on the Supreme Court.
To aid the Senate—and
the public—in its task of evaluating this nomination, this report assesses
Judge Gorsuch’s judicial record, outlook, and views about the law. Importantly,
in considering his record—as with any nomination for a lifetime seat on the
judiciary—it is not the Senate’s job to merely rubber stamp a nominee based on
a review of a resume or academic record. The Supreme Court at any time, but
particularly now, is essential in protecting our rights. It is vital that
anyone confirmed to the Court has a demonstrated commitment to ensuring that
the Constitution and our nation’s laws protect all Americans. Thus, the Senate must carefully examine the
nominee’s record to ensure our nation’s next Supreme Court justice shares a
commitment to critical constitutional values and legal protections and can be a
fair and open-minded jurist.
Alliance for Justice
has reviewed an extensive portion
of Judge Gorsuch’s record—most notably cases, but also writings from the period
before he joined the Tenth Circuit as well as during his tenure as a judge. The
report focuses primarily, although not exclusively, on cases that split the
court.1 We have not, however, reviewed decisions he made while serving at the
Department of Justice; papers from this period of his career have not been made
public.
After a thorough review of his record, the primary conclusion is that, on the merits, Judge Gorsuch is not qualified to serve on the Supreme Court.
Following this
introduction, Part II of the report provides a brief biography of Judge
Gorsuch.
Part III provides an
overview of Judge Gorsuch’s record and explains key findings. The overall
conclusion of this section is that Judge Gorsuch has, throughout his life, been
driven by an ultraconservative ideology. This ideology is marked by four
themes: (1) hostility toward social and legal progress over the last century;
(2) willingness to downplay abuses of constitutional rights by government
actors; (3) aggrandizement of corporations over individuals; and (4) skepticism
of the federal government’s role in protecting the health and safety of the
American people and a desire to weaken important legal protections. His record
demonstrates that Judge Gorsuch is driven by this ideology; he is not an
unbiased judge, who decides cases on the facts and law, as opposed to his own
personal views.
Part IV examines Judge
Gorsuch’s record on specific issues. It is clear that for many communities—
women, workers, LGBTQ Americans, persons with disabilities, and people of
color—Judge Gorsuch’s philosophy represents an existential threat to rights and
freedoms. First, Judge Gorsuch’s philosophy
of favoring
corporations and special interests has resulted in his approval of corporate
personhood and rulings against workers trying to enforce laws that ensure safe
working conditions, fair wages, and equal opportunities. Moreover, his rulings
have made it harder for consumers to seek redress for injuries. Second, Judge
Gorsuch has demonstrated hostility toward women’s rights. He has questioned the
principles underlying the constitutionally protected right of women to decide
whether to have an abortion. And, as a judge, he has consistently ruled to make
it harder for women to access basic contraceptive health services. Third, Judge
Gorsuch has repeatedly failed to give proper effect to essential protections
for people of color, persons with disabilities, and LGBTQ Americans. Fourth,
Judge Gorsuch’s rulings have frequently been adverse to immigrants’ rights.
Fifth, on key First Amendment issues, Judge Gorsuch has argued for a stronger
link between political speech and money in politics, and he has advocated for a
greater role for religion in government. Sixth, Judge Gorsuch has turned away
challenges from environmental groups seeking to protect natural resources and
public land, while issuing rulings that favor corporations. Finally, in the
area of criminal justice, Judge Gorsuch has a troubling record of failing to
enforce important constitutional protections.
It is important to
note the unique circumstances surrounding Judge Gorsuch’s nomination. Even
before making his nomination to the Court, President Trump made certain
guarantees regarding his selection. First, unlike past presidents who sought advice from numerous persons and groups,
but did not outsource the selection process itself, Trump promised that his
judicial nominees would “all be picked by the Federalist Society.” He said that
he had turned to the “Federalist people” and the Heritage Foundation to
assemble a list of 21 potential nominees, which included Judge Gorsuch. Trump
also promised to nominate a justice who would “automatically” overturn Roe v. Wade, and he made clear that “evangelicals,
Christians will love my pick and will be represented very fairly.”
Moreover, even before
Judge Gorsuch was nominated, the President attacked the independence of the
judiciary, attacks that have only increased. During the campaign, then-candidate
Trump attacked federal judge Gonzalo Curiel, claiming he could not be unbiased
in a case involving Trump University because Judge Curiel was of “Mexican
heritage.” With respect to Judge Curiel, President Trump called him a
“disgrace” and said that he was presiding over “a rigged system.”
Just two days before
he nominated Judge Gorsuch, President Trump fired Acting Attorney General Sally
Yates because she had reached the independent conclusion that the President’s
executive order on travel and immigration could not be defended in court (a decision
confirmed by a unanimous panel of the Ninth Circuit).
And, after Judge
Gorsuch was nominated, the President’s
attacks on the judiciary continued. On February 4, 2017, President Trump
attacked and insulted federal Judge James Robart, a George W. Bush appointee.
The President called him a “so-called judge” after Robart issued a temporary
restraining order against Trump’s executive order barring people from seven
predominantly Muslim countries from coming to the United States. President
Trump wrote that he “[j]ust cannot believe a judge would put our country in
such peril. If something happens blame him and court system.” After the Ninth
Circuit heard an appeal in the case, he wrote “I don’t ever want to call a
court biased. . . . And we haven’t had a decision yet. But courts seem to be so
political and it would be so great for our justice system if they would be able
to read a statement and do what’s right.” He added, “[i]f the U.S. does not win
this case as it so obviously should, we can never have the security and safety
to which we are entitled.” And, on February 11, 2017, he wrote “our legal system
is broken.”
These comments and
actions by the President raise the bar for lawmakers charged with evaluating
the Gorsuch nomination. Judge Gorsuch has been nominated by a person who has
expressed contempt for our legal system; a system he has called “broken.” Given
the fact that the President has made repeated promises about how his nominee
would rule on the Court and has attacked the judicial branch of government,
including on occasions when it simply performed its duty to enforce the
Constitution, it is particularly critical that the Senate closely scrutinize
President Trump’s nominee: a nominee who will, if confirmed, have a lifetime
seat on the Supreme Court. Under such circumstances, the Senate’s normal
customs for evaluating a nominee are insufficient. The Senate must apply
heightened scrutiny to Judge Gorsuch’s
record to ensure that he will be an independent and unbiased jurist.
Indeed, until Justice
Scalia’s death, five justices on the Supreme Court consistently eviscerated
critical constitutional rights and legal protections. The Court, for example,
struck down Section 5 of the Voting Rights Act, making it easier for states and
localities to erect barriers to voting, see
Shelby Countyv. Holder, 133 S. Ct. 2612 (2013);
made it harder for women to ensure equal pay for equal work, to band together
to fight gender discrimination, and for older workers to protect themselves against
discrimination, see Wal-Mart Stores,
Inc. v. Dukes, 564 U.S. 338 (2011);
Gross v.
FBL Fin. Servs., 557 U.S. 167 (2009);
Ledbetter v. Goodyear Tire & RubberCo., 550 U.S. 618 (2007); upheld
limits on a woman’s right to decide whether to have an
abortion, see Gonzales v. Carhart, 550 U.S. 124
(2007); enabled corporations to claim religious beliefs and then deny
contraceptive coverage to female employees,
see Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct.
2751 (2014);
eroded our democracy by enabling corporations and special interests to inundate our elections with
unlimited spending, see Citizens United v. FEC, 558 U.S. 310
(2010); and made it harder for states to protect consumers and ensure victims of fraud have
their day in court, see AT&T Mobility LLC v. Concepcion,
563
U.S. 333 (2011).
As these cases—and
countless others— demonstrate, a justice has the awesome power to interpret our
laws and to influence the lives of all Americans. This report seeks to provide a
comprehensive review of Judge Gorsuch’s record in order to better understand
who he would be as a justice.
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