Supreme Court Nomination

From Resistance Manual
This is the approved revision of this page, as well as being the most recent.
Jump to: navigation, search

Nominee[edit]

Judge Neil M. Gorsuch

Judge Gorsuch graduated from Harvard Law School, clerked for conservative judges (Judge David Sentelle of the US Court of Appeals for the District of Columbia Circuit and Justices Byron White and Anthony Kennedy of the Supreme Court), and was a high-ranking official in the Bush Justice Department. He was appointed to the US Court of Appeals in 2006 by President George W. Bush. His legal philosophy very closely matches that of Justice Antonin Scalia, whose seat he is nominated for.[1]

Judge Gorsuch is best known for siding with religious employers seeking to limit access to birth control coverage for their employees in the Hobby Lobby case. He is also a very vocal proponent of limiting federal agencies' ability to formulate regulations, and is in favor of overruling the Chevron doctrine, which holds that courts should generally defer to agencies when the law authorizing a regulation is ambiguous and should only strike down a regulation if the law clearly does not permit it. Overruling Chevron would mean a significant shift in power from the elected executive branch to the nonelected judiciary.[2] Judge Gorsuch referred to marriage equality as part of the liberal "social agenda" and joined a ruling against an imprisoned transgender woman who was denied access to hormone therapy, denying that it constituted cruel and unusual punishment under the Constitution.[3]

When Trump announced Gorsuch as his nominee, he said that Gorsuch had worked for the Harvard Prison Legal Assistance Project and the Harvard Defenders during law school, which “demonstrated a commitment to helping the less fortunate." More than 30 students who participated in those programs at the same time that Gorsuch was at Harvard Law School have said that they have "no recollection of his involvement."[4]

Gorsuch's record, in the entirety of his 10th Circuit cases, demonstrates that he has more often sided with the government than with individuals when the individual claims that an illegal search and seizure took place. However, in those cases he did view government power and reach with skepticism.[5]

Though Judge Gorsuch's track record reveals little about his stance on voting rights, there are several reasons to believe he will be hostile to them if confirmed to the Supreme Court. Judge Gorsuch is a member of the Federalist Society, which counts Justices Alito and Thomas in its ranks. In addition, the Senate Judiciary Committee received emails Gorsuchs wrote while at the Justice Department that shed more light on his position.[6] In them, Gorsuch supported the nomination of conservative activist Hans von Spakovsky to head the Federal Election Commission. Hans von Spakovsky has emphatically come out against expanding voting rights, arguing that the Voting Rights Act was "constitutionally dubious at the time of its enactment." [7] von Spakovsky also wrote in support of President Trump's call to investigate voter fraud, even though leading Republicans do not believe an investigation would turn up much. [8]

Ways to Resist[edit]

Call your senator by dialing tel:844-6-RESIST and tell them to oppose this nominee.

What Senators Have Said[edit]

No Republican senators (as of yet) have said that they will vote against Gorsuch or side with a Democratic filibuster to block the vote to confirm him. If eight Democratic senators decide to allow a vote, Gorsuch could be confirmed; the Republicans could also change the rules and not allow a filibuster (the "nuclear option"), which would make confirmation much easier (see details below).[9] Here are the views of Democratic senators.

US Senators' positions on SCOTUS nominee Gorsuch

Click here for source data.

Confirmation Process[edit]

The US Constitution requires the president to nominate people to fill potential openings in the Supreme Court, where there are nine justices. The Senate Judiciary Committee then researches the nominee, holds a hearing, and votes on the candidacy. If the Committee opposes the candidate, it usually sends the nomination to the full Senate with a recommendation to reject it. The Senate then holds a debate and votes on the candidacy. A simple majority (51 votes) is needed to confirm.[10]

Cloture[edit]

In the Senate, the time for debate is generally unlimited. Senators have used that power to delay votes on laws and nominees by filibustering (speaking for an excessive length of time). In practice, simply threatening to filibuster can also delay a vote. Debate ends if there is a 60-vote majority vote for cloture, which practically overrides the filibuster.[11] If a cloture vote succeeds, the Senate can stop debate after 30 more hours.[12]

Rule Changes[edit]

It is currently possible to filibuster a vote on a Supreme Court nominee. If a filibuster actually occurs, however, Republicans could change the Senate rules to only require a simple majority (51 votes) to confirm a Supreme Court nominee. Senate Majority Leader Mitch McConnell has not ruled out this step, the so-called nuclear option, noting that the "practice was that you didn't [filibuster] even though the tool is in the toolbox."[13]

In 2013, then Democratic Majority Leader Harry Reid led the change in rules to only require a simple majority vote (51 votes) to confirm executive branch appointments and judicial appointments to federal courts other than the Supreme Court.[14]

Potential Future Supreme Court nominees[edit]

  • Judge William H. Pryor Jr.: Judge Pryor is a protégé of Jeff Sessions: he was his deputy in Alabama and a very vocal opponent of Roe v. Wade, the Supreme Court decision legalizing abortion.[15] As Alabama attorney general, Pryor filed a brief in the Supreme Court arguing that states should "remain free to protect the moral standards of their communities through legislation that prohibits homosexual sodomy[16] and that "the states should not be required to accept, as a matter of constitutional doctrine, that homosexual activity is harmless and does not expose both the individual and the public to deleterious spiritual and physical consequences."[17] (The Supreme Court voted to prohibit such discriminatory laws in Lawrence v. Texas.) Pryor has also called for an employer's right to ignore laws they object to on religious grounds, beyond even the bounds established in the Hobby Lobby case.[18]
  • Judge Thomas M. Hardiman: Judge Hardiman has spoken at several events hosted by a conservative society known for its opposition to the Chevron rule.[19]
  • Judge Diane S. Sykes: Judge Sykes has backed a voter-ID law in Wisconsin[20] and argued that anti-gay groups have a constitutional right to receive government subsidies. She has denied that anti-gay discrimination exists at all, as long as people engaged in discrimination make an exception for gay people who refrain from having sex.[21] Sykes also wrote an opinion in support of religious objectors' right to limit their employees' right to access birth control coverage.[22]
  • Judge Steven Colloton: Judge Colloton has consistently voted to reduce reproductive rights, voting, for instance, to reinstate a South Dakota law requiring abortion providers to tell patients they would terminate an "existing relationship" with an "unborn human being" and that abortions can lead to suicide.[23]
  • Judge Raymond Gruender: Judge Gruender voted with Judge Colloton on the South Dakota abortion law[24] and authored an opinion defending employers who exclude birth control coverage from their employees' health plans.[25]
  • Judge Raymond Kethledge: Judge Kethledge has heard fewer controversial cases than the other potential nominees. She did side with the Ohio Republican Party in a decision that could have prevented 200,000 people from voting,[26] but a unanimous Supreme Court decision reversed the decision three days after it was handed down.[27]
  • Judge Joan Larsen: Judge Larsen has even fewer known positions, despite her conservative credentials. For instance, she wrote an article criticizing Lawrence v. Texas, the landmark Supreme Court decision banning the criminalization of homosexual acts, but her argument involved Lawrence's discussion of foreign law and not its core topic.[28]