Before President Trump’s Supreme Court choice testifies before a Senate panel, Republicans are optimistic Judge Neil Gorsuch will be confirmed while Democrats face enormous pressure from progressive activists to block him.
A federal appellate judge nominated by former President George W. Bush in 2006, Gorsuch would fill the Supreme Court seat left vacant by the death last year of conservative Justice Antonin Scalia.
Widely viewed as an articulate and capable jurist, Gorsuch possesses a conservative judicial philosophy, borne out in thousands of federal court cases over the past decade.That has Democrats worried.
Senate Minority Leader Chuck Schumer of N.Y., criticizes the Republican health care plan designed to replace Obamacare, March 7, 2017, during a news conference on Capitol Hill.
“Judge Gorsuch may act like a studied, neutral judge, but his record suggests he actually has a right-wing, pro-corporate, special interest agenda,” said Senate Minority Leader Chuck Schumer, a New York Democrat. “Judge Gorsuch’s record demonstrates he prefers CEOs over citizens, executives over employers, corporations over consumers.”
“It’s unclear exactly where he [Gorsuch] falls on the spectrum among conservative justices, but he certainly would fall on the conservative side of the line,” said University of California, Irvine law professor Rick Hasen. “He is likely to act like Justice Kennedy [a moderate], but vote like Justice Scalia.”
Few options for Democrats
Progressive groups are sounding alarm.
“He [Gorsuch] is a believer in originalism, that the Constitution is frozen and unchanging,” said Rachel Tiven, CEO of Lambda Legal, which advocates on behalf of gay, lesbian, bisexual and transgender Americans. “That could mean that things like access to birth control or privacy in your own bedroom are not things he would believe the Constitution protects.”
Although in the minority, Democrats could attempt to block Gorsuch by using a procedural tactic, the filibuster, which would require a three-fifths majority vote to confirm him. But it is not clear that enough Democrats would join the filibuster for it to succeed, and Republicans could change Senate rules to eliminate the filibuster for Supreme Court nominees and confirm him with a simple-majority vote.
“The Democratic base wants there to be as much resistance to Trump’s agenda as possible,” Hasen said. “Democratic leaders in the Senate have very little leverage. They are caught between a rock and a hard place. The base wants them to do something, but there really is nothing effective that they could do.”
Republicans believe they have little to fear.
“I don’t think they [Democrats] are going to filibuster,” Grassley said. “I can’t dictate what the Democrats are doing, but I don’t hear it [discussed] very much.
Hearings open Monday
Publicly at least, Democrats are taking a wait-and-see approach on Gorsuch as his confirmation hearings are set to begin Monday.
“We [Democrats] are going to ask a lot of questions,” Patrick Leahy of Vermont, a long-serving member of the Judiciary Committee, told VOA. “I won’t prejudge it, I’ll keep an open mind till I hear his [Gorsuch’s] answers.”
Tiven wants Democrats to press Gorsuch for his views on watershed court victories by the LGBT community, like the 2003 Supreme Court ruling that struck down anti-sodomy laws in the United States.
Democratic senators readily acknowledge the pressure they are feeling from liberal grassroots activists and groups like Lambda Legal.
“We’ve had a lot of heat, there’s no question about that,” the Judiciary Committee’s top Democrat, Dianne Feinstein of California, told VOA. “But we have a constitutional duty to do. This is an advise-and-consent position, and it’s up to us to carry it out properly.”
Democrats also remain bitter that Republicans blocked former President Barack Obama’s nominee for the same high court seat, Judge Merrick Garland, for nearly a year.
Republicans are wholeheartedly endorsing Gorsuch.
“He is going to make an exceptional Supreme Court justice,” said Senate Majority Leader Mitch McConnell, a Kentucky Republican. “It’s a sentiment you hear expressed right across the political spectrum. The president made a brilliant choice with Judge Gorsuch.”
Little impact on court's balance
As a conservative jurist, Gorsuch would, if confirmed, replace another conservative Supreme Court judge and, in theory, have little impact on the court’s ideological balance. But other vacancies could loom in coming years that would allow Trump to replace the court’s liberals or its one remaining moderate member.
“It would be much worse from the liberal perspective if it’s [Anthony] Kennedy or [Ruth Bader] Ginsburg or [Stephen] Breyer leaving, the three oldest justices now on the court,” Hasen said.