When staunchly conservative US Supreme Court Justice Antonin Scalia died in March 2016, the highest court in the land draped mourning crêpe across his chair. With all the tools at their disposal, Senate Republicans made sure it stayed there until they had a nominee to match Scalia’s ideology.
Now the party controls both houses of Congress and the White House, its leaders have got just what they wanted in Neil Gorsuch, a conservative justice who promises to swing the court rightward on nearly every issue.
He is quite different from Barack Obama’s ill-fated nominee Merrick Garland, a centrist whom one leading Republican senator called “a fine man”. Republicans effectively obstructed the normal course of government business and upended constitutional precedents by refusing to allow Garland his moment in front of the Judiciary Committee.
Now, Senators are preparing to examine Gorsuch instead – but his confirmation is not a given. Senate Democrats have every opportunity to return the favour and obstruct Gorsuch’s nomination.
Even as a minority party, they can block Gorsuch: according to Senate rules, a Supreme Court nomination can still require 60 of 100 votes if a filibuster is used. This is a procedural tactic that Oregon’s Democratic Senator Jeff Merkley has already promised to deploy.
Here is where things get interesting. Like Trump, Gorsuch is clearly outside the mainstream. Although he has a typical Supreme Court pedigree – he’s a graduate of Columbia University and Harvard Law School who clerked for Supreme Court Justices Byron White and Anthony Kennedy – he would be arguably the most clearly conservative appointee since Scalia joined the bench in 1986.
Original intent
In the same vein as Scalia, Gorsuch is a strict “originalist”: he believes that the courts should not interpret the Constitution in the context of our times, but rather read it as it was originally meant to be understood without taking the changes of the last two-plus centuries into account.
Orginalist readings of the Constitution open the door for the Supreme Court to roll back civil rights laws, dissolve traditional boundaries between church and state, and ensure that regressive practices in social justice are copper-fastened in federal law.
As such, Gorsuch is expected to argue against some LGBT rights and federal intervention in state policies – and his judicial record puts him firmly on the rsocial and cultural right.
Gorsuch currently sits on the federal appellate court for the western US, to which he was appointed by George W. Bush in 2006. In his ten years on that bench, he’s played a key role in some of the most controversial cases it’s heard. Among these was Burwell v. Hobby Lobby, a landmark case that eventually reached the Supreme Court.
It was brought by Hobby Lobby, an arts and crafts corporation that wished to deny its employees contraception on the basis that the company (owned by a conservative evangelical family) held contrary religious views on the use of birth control.
The case simultaneously tested the right of private corporations to restrict the freedom of employees, the notion that corporate identities can have a religious affiliation, and the limits of the Affordable Care Act (aka Obamacare), which at the time mandated companies like Hobby Lobby to cover contraception costs as a preventative care treatment for women.
Gorsuch argued that American companies have the same rights as individuals and are afforded the same religious freedoms, meaning that Hobby Lobby and other companies can now refuse to provide employees with health insurance that covers the cost of contraception.
Depending on the specifics of each issue, these views and many others could put Gorsuch out of step with many or most Americans. But even with that argument on their side, it’s unlikely the Democrats will manage to block his confirmation.
The Democrats are notoriously bad practitioners of congressional brinkmanship. Even though the Republicans enjoy a slim majority (52-48), the Democrats have never mastered the sort of tactics the Republicans deployed against Obama and Merrick Garland. And whereas Obama made his nomination while running out of time, Trump is at the start of his term. The public will be less tolerant of an obstructionist Senate minority at this stage in the political cycle, and the Democrats need to go into the 2018 midterm elections with as much sympathy as possible.
A difficult hand, then – but not necessarily a losing one. Less than two weeks into his presidency, Trump has provoked global protests on a remarkable scale, and given his unscrupulous use of executive orders to command construction of a border wall and cut off abortion funding, the Senate’s Democrats are sounding more emboldened than ever before. If they can match their newfound chutzpah with procedural and political nous, they may yet claim what would be a truly prized scalp.