By: Sean Newhouse – Staff Writer
In an event that had all the markings of a season finale for a television show, President Trump announced during primetime on Jan. 31 that his pick to replace the late highly respected conservative bulwark Justice Antonin Scalia is Judge Neil M. Gorsuch.
President Trump said during his announcement that, “Judge Gorsuch has outstanding legal skills, a brilliant mind, tremendous discipline and has earned bipartisan support.” At the relatively young age of 49, Gorsuch’s credentials include degrees from Columbia University, Harvard Law School (he was actually a classmate of President Obama), and Oxford University.
Gorsuch clerked for current Supreme Court Justice and Reagan appointee Anthony Kennedy (who was the swing vote in the case which declared same-sex marriage to be legal nationwide), has been a practicing lawyer, and at the age of 39 was confirmed unanimously by the Senate to serve on the 10th Circuit Court of Appeals.
The model of the Justice Gorsuch will be replacing if confirmed, is a strongly conservative leaning judge described as an “originalist” and “textualist,” meaning that he follows a strict interpretation of the Constitution in his decisions on cases.
Moreover, he wrote a legal book arguing against the legality of assisted suicide and euthanasia. He is also a supporter of religious freedom, deciding in favor of Hobby Lobby over whether or not private corporations can object for religious reasons to an Obamacare mandate that required employers to pay for contraception as part of their healthcare plans.
A few months ago, Gorsuch made a fairly controversial decision that a botched execution did not violate the Eighth amendment, which forbids the government from enforcing cruel and unusual punishments on its citizens.
Clayton Lockett was undergoing capital punishment when something went wrong with the injection and what should have been a relatively painless execution was, in fact, excruciatingly painful.
Referencing a former Court decision that ruled botched executions to not be in violation of the eighth amendment because they are accidental, Gorsuch ruled that this event did not violate the Eighth amendment.
Judge Gorsuch has not directly expressed his feelings, personal or legal wise, on abortion or same-sex marriage and LGBTQ+ rights. Nonetheless, the president has been quoted as praising Gorsuch as a judge who could have the opportunity to overturn Roe v. Wade. Furthermore, Planned Parenthood and multiple LGBTQ+ organizations have spoken out against his nomination.
Justice Scalia passed away on Feb. 13, 2016, when former President Obama was still in office. Prior to Scalia’s death, the balance of the court was 5-4, the former being conservative leaning and the latter being liberal leaning.
With Scalia’s death, Democrats saw an opportunity to change the balance of the court to their side.
Obama nominated Merrick Garland, a U.S. Court of Appeals judge with a Harvard degree and experience prosecuting homegrown terrorism while working for the Justice Department. Republicans, who had and still maintain a majority in both houses of Congress, led by Senate Majority leader Mitch McConnell blocked Garland’s nomination. (Historically, it is rare for a president’s Supreme Court pick to not pass the Senate.)
As a result of this, Senate Democrats are not that willing to be bipartisan for Gorsuch. Senate Minority Leader (and Amy Schumer’s relative) Chuck Schumer (D-NY) stated, “I have very serious doubts about Judge Gorsuch’s ability…Judge Gorsuch has repeatedly sided with corporations over working people, demonstrated a hostility toward women’s rights, and most troubling, hewed to an ideological approach to jurisprudence that makes me skeptical that he can be a strong, independent Justice on the Court.”
Hypothetically, Democrats could filibuster the nomination, which is when a Congressman or woman talks on the Senate floor delaying a vote or action from taking place.
60 votes are needed to break a filibuster on a Supreme Court nomination and enact a “yes” or “no” vote, which would confirm Gorsuch with a simple majority of the Senate.
There are not 60 Republican votes in the Senate currently; however, with multiple Democratic Senators up for re-election in two years from states that Trump won, Senate Republicans may have an unlikely ally.
If Democrats vote in a block, President Trump has indicated that he would encourage the use of “the nuclear option.” The “nuclear option” would be to change the Senate rules to simply require a 51-person majority to end filibuster on a Supreme Court nomination.
Ironically, Senate Democrats made the rule regarding confirmation of all other federal positions, which allowed many of Trump’s more controversial Cabinet picks to be confirmed.
Gorsuch made headlines recently when Connecticut Democratic Senator Richard Blumenthal told news organizations that Gorsuch told the Senator that he was “disheartened” about Trump’s statements regarding the judiciary and its decisions on his immigration executive order.
On Feb. 5, the president tweeted, “Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!”
Public opinion is generally in favor of Gorsuch’s nomination. A CNN/ORC poll found that 49 percent of Americans believe the Senate should confirm Gorsuch (margin of error plus or minus three points).
52 percent of Americans believed Obama’s nominee for the Supreme Court Merrick Garland should have been confirmed by the Senate.
However, there is a strong partisan divide in public opinion over Gorsuch’s nomination. 84 percent of Republicans support his confirmation; whereas, 61 percent of Democrats say he should not be confirmed. In short, based on this data, Democratic Senators have a tough couple of decisions ahead of them.
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