Neil Gorsuch and the Stolen Supreme Court Seat
Neil Gorsuch, a judge on the United States Court of Appeals for the Tenth Circuit, is President Trump’s nominee to fill the vacant seat on the Supreme Court of the United States. The seat, which has been empty since Antonin Scalia’s death in February 2016, is the subject of fierce political debate.
Gorsuch could aptly be described as extremely qualified for the role. He received his Juris Doctor (JD) at Harvard and a Doctorate of Philosophy in Law from Oxford, for a dissertation on assisted suicide and euthanasia. Prior to being appointed to the bench, he clerked for the US Court of Appeals and the Supreme Court, worked in private practice for a decade, and was a Deputy Associate Attorney General at the U.S. Department of Justice. However, even with these credentials a large political division has formed around his nomination.
Republicans are ecstatic with President Trump’s decision to nominate Gorsuch; his legal philosophies on textualism in statutory interpretation, originalism in constitutional interpretation, and a dislike of judicial activism along with his legal views supporting religious freedom in contraceptive healthcare, money in politics, and the right to bear arms would plant him firmly on the right side of the Court and make him a near replica of Scalia on the bench.
Democrats are categorically less excited; prominent members of the party’s liberal wing have criticized his nomination, focusing on his aversion to campaign finance reform, anti-trade union judgements, disapproval of judicial deference to government agencies and support for gun rights. Many also worry that his views on assisted suicide indicate a support of the Republican position of overturning Roe v. Wade.
Democrats also oppose this nomination as they believe the Court’s seat should belong to Merrick Garland. Merrick Garland was nominated by President Obama with 11 months remaining in his term, but he never received a confirmation hearing in the Republican-held Senate. Republican leaders argued that since it was an election year and the last year of Obama’s presidency they could delay conducting hearings and essentially prevent the appointment, a historically rare move. Senate Majority Leader Mitch McConnell went as far to say that this maneuver was “one of [his] proudest moments”.
Democrats on the other hand argued that the Republicans unfairly abused their Senate majority and blocked an extremely qualified moderate candidate who had historically received glowing bi-partisan praise. Both sides have put forward legal arguments for and against the constitutionality of this move, but these arguments have not been tested in court.
Current Senate procedure would allow the Democrats to avenge this perceived maltreatment and prevent Gorsuch’s confirmation. Although only a simple majority vote is needed to confirm Gorsuch in the Senate, Democrats can invoke the filibuster to block the vote which Republicans do not have enough seats to break. Republicans can get around this by utilizing the “nuclear option” that would remove the ability to filibuster Supreme Court nominees or enlisting the help of more conservative Democrats who are up for re-election in red states.
However, as of now, the outcome of Gorsuch’s Senate confirmation hearings, which are planned to take place later this month, are very much up in the air.
Henry Federer (1L) is a Staff Writer for Juris Diction.