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Trump’s Supreme Court Selection, Judge Neil Gorsuch: A Troubling Record, And A Profound Burden Of Proof

January 31, 2017

CAC President Elizabeth Wydra: “On the heels of Trump’s Muslim ban, and after months of litmus-test promises Trump made to his most ideologically committed partisans, Gorsuch has a lot to prove to the American people before they can consider him a mainstream nominee.”

“Gorsuch must show that he does not support the extreme authoritarian viewpoint of the President who nominated him. He must prove that he will be completely independent from Donald Trump.”

“Gorsuch must prove that he will not be a yes-man for the U.S. Chamber of Commerce and other business interests that have benefited from the most pro-corporate Supreme Court in decades.”

“Gorsuch must prove he understands that our Constitution as amended shields the rights of African Americans, women, gays and lesbians, and others who were carved out of its protections in Philadelphia.”

Washington, DC – On news tonight that President Donald Trump has nominated Judge Neil Gorsuch of the U.S. Court of Appeals for the Tenth Circuit to be Associate Justice of the U.S. Supreme Court, to fill the vacancy left by the death of Justice Antonin Scalia who passed away nearly one year ago, Constitutional Accountability Center President Elizabeth Wydra issued the following statement: 

“In the following weeks, we will scrutinize the record of Judge Gorsuch very closely. But today one thing is clear: President Trump has laden Gorsuch with a profound burden. Immediately coming on the heels of Trump’s Muslim ban, and after months of litmus-test promises Trump made to his most ideologically committed partisans about positions that his ultimate choice for the Court would have to support, Gorsuch has a lot to prove to the American people before they can consider him a mainstream nominee. 

“To begin, Gorsuch must show that he does not support the extreme authoritarian viewpoint of the President who nominated him. He must prove that he will be completely independent from Donald Trump. He must be zealous about the third branch of government’s role as a check on illegal action by the other branches, regardless of ideological affinity. That is important during any presidential administration, but it is especially critical now, given the Trump Administration’s anti-constitutional impulses and myriad corrupt influences. Merely paying lip service to these values at Gorsuch’s eventual confirmation hearings will not suffice. Without a clear record showing independence from hidebound ideological or partisan decision-making, the American people cannot be confident that President Trump is not attempting to install a rubber-stamp for Trump Administration policies and conflicts of interest that could eventually make their way to the Supreme Court.

“Moreover, Gorsuch must prove that he will not be a yes-man for the U.S. Chamber of Commerce and other business interests that have benefited from the most pro-corporate Supreme Court in decades. From being able to vindicate their rights in court instead of being forced into arbitration, to keeping big money from corrupting our political system, to protecting the environment from polluting corporations, the American people don’t want to see even more corporate influence on the Supreme Court. For working families who expect the Trump Administration to look out for their interests, Gorsuch must be able to prove his independence from corporate interests.

“That means that Gorsuch’s purported fidelity to the text and history of the Constitution has to mean something other than just a long line of ideologically conservative views or rulings from the bench, with the label ‘originalist’ attached to them. Our Constitution is, in its most vital respects, a progressive document. It was written by revolutionaries and amended by those who prevailed in the most tumultuous social upheavals in our nation’s history – the Reconstruction Republicans after the Civil War, the Progressives and the Suffragettes in the early 20th Century, the Civil Rights and student movements in the 1950s and 1960s. Gorsuch must show that he understands how the Fourteenth and Fifteenth Amendments radically shifted power away from the states to the federal government to protect the rights and freedoms of those who suffered from discrimination, and which today guarantee equality for all Americans. Gorsuch must prove he understands that our Constitution as amended shields the rights of African Americans, women, gays and lesbians, and others who were carved out of its protections in Philadelphia. 

“Finally, Gorsuch must prove that he is not beholden to the litany of litmus tests on social issues that President Trump repeatedly promised that he would apply to his Supreme Court nominee. Trump said that holding the ‘pro-life’ position would be a litmus test for his selection of a justice. Trump predicted the eventual overturning of Roe v. Wade, which recognized the constitutional right to abortion, as a result of his potential Supreme Court choices. To Trump, it apparently doesn’t matter that the text and history of the Constitution protects the fundamental right to abortion, and Trump has evinced little concern for the inability of women to access abortion should Roe be overturned. Trump promised that ‘religious liberty,’ defined as upholding – even extending – the court’s decision taking away the rights of employees in the Hobby Lobby case, will also be a litmus test for his Supreme Court nominee. And, in yet another litmus test, Trump promised that his eventual nominee would hold Justice Scalia’s expansive view in the gun rights case of Heller v. DC. Just days ago, Trump boasted, ‘I think evangelicals, Christians will love my pick, and will be represented very fairly.’

“Again, at Gorsuch’s forthcoming confirmation hearings, simply avowing independence and holding no opinions on these issues is meaningless. Gorsuch must also have a record that proves independence and openness of mind to the legal questions that may come before him. In fact, it was Senator Jeff Sessions – before he was President Trump’s nominee to be Attorney General – who last year set out the proper test for a Supreme Court nominee. Sessions said, speaking of fellow conservatives, ‘That’s what we want, a neutral umpire.’ Sessions went on to say, ‘Legal scholars, people who would like this list [of Trump’s potential nominees], they’re looking for people not to advance a conservative agenda. That’s not what we want.’ Except that’s what Trump promised his supporters time and again, giving the American people more than enough reason to believe that’s what he just delivered. 

“Gorsuch can pass Trump’s litmus tests or the Sessions ‘neutral umpire’ test, but he can’t pass both. What’s good for President Trump, however, may be dangerous for the rights and liberties of Americans. In the weeks ahead, we will see if Gorsuch can bear the onerous burden that Trump has placed on him, and whether he will pass muster as a mainstream Justice for our Constitution and all the American people.”

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Constitutional Accountability Center (www.theusconstitution.org) is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution's text and history.

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