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Constitutional Accountability Center, Troubled by Judge Neil Gorsuch’s Selective Originalism, Opposes His Confirmation to U.S. Supreme Court
Washington, DC – Following hearings last week on President Trump’s nomination of Judge Neil Gorsuch to the U.S Supreme Court – and after weeks of analyzing Gorsuch’s approach to interpreting the Constitution, as well as the business community’s effusive reaction to his nomination to a Court that has exhibited a historic pro-business tilt – Constitutional Accountability Center President Elizabeth Wydra announced today that CAC opposes Gorsuch’s confirmation by the U.S. Senate.
CAC’s detailed analysis, along with other resources on the Gorsuch nomination, is available here.
[U]pon reviewing his originalist bona fides, we became concerned that Judge Gorsuch’s record suggested he might be merely a selective originalist, a judge who gives pride of place only to parts of the Constitution, while ignoring the latter, progressive Amendments that prohibit states from infringing on individual rights, protect substantive fundamental rights and equality, and give Congress broad powers to help realize these constitutional promises. His record raised concerns for CAC as an organization that believes that constitutional interpretation should begin with a careful analysis of constitutional text and history, including the text and history of the Constitution that point in a progressive direction.
Unfortunately, during his confirmation hearing, Judge Gorsuch did not answer questions about post-Bill of Rights Amendments that would have quelled our concerns about his judicial philosophy, and he provided answers that could not be squared with the text and history of the Constitution… [A]s we explain in detail… there is too much doubt that Judge Gorsuch has the proper fidelity to the whole Constitution that originalism requires. As a result, CAC cannot endorse the confirmation of Judge Gorsuch and calls upon the Senate to vote NO on his confirmation….
CAC President Wydra added, “While Judge Gorsuch gave some, frankly, terrific answers to a handful of questions about the Constitution at his hearing last week, his evasive responses to many other questions failed him in his effort to carry the heavy burden of proof that he brought with him into the Senate Judiciary Committee. Our Constitution’s text and history guarantees basic rights and freedoms to all Americans – including voting rights, the right to choose an abortion, access to contraception, and equality for gay, lesbian and transgender people. Apparently open to giving his views on some topics, Gorsuch had virtually nothing to say about these basic principles.”
Wydra continued, “President Trump’s litmus tests on abortion and other issues; the need to be independent from Trump and enforce the Constitution’s anti-corruption guarantees; the prospect of continued corporate dominance at the Court; and the need to show fidelity to the whole Constitution – not just the parts that conservatives like – all weighed down Judge Gorsuch’s nomination from the start. His Senate testimony did little to cast off that burden and prove that he would be a justice for all Americans, and not merely check off a box for Trump’s core backers. For these reasons, Gorsuch failed to earn CAC’s support.”
CAC’s Opposition to the Confirmation of Judge Gorsuch to the Supreme Court, Elizabeth Wydra, March 31, 2017: http://theusconstitution.org/sites/default/files/CAC-Gorsuch-Recommendation.pdf
The Selective Originalism of Judge Neil Gorsuch: A Review of the Record, CAC Issue Brief, David Gans, March 16, 2016: http://theusconstitution.org/sites/default/files/briefs/CAC-Selective-Originalism-of-Gorsuch.pdf
Supreme Court Nominee Neil Gorsuch: Expected by Big Business to be Another Reliable Vote on the Roberts Court, CAC Issue Brief, Judith E. Schaeffer, March 10, 2017: http://theusconstitution.org/sites/default/files/CAC-Gorsuch-And-Business.pdf
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.