Assuming that Trump’s nominee Neil Gorsuch is confirmed (and he really shouldn’t even be up for confirmation since Obama’s nominee Merrick Garland was blocked), here’s what we have in store:
- An “originalist” like Scalia, who believes that the Constitution should be interpreted as it was at the time it was written
- A “textualist“, who believes that the context in which a law is made is irrelevant to its application: it should be applied exactly as the text states without regard to what was going on in society when the law was made or what the intent of the law was.
- In the Hobby Lobby case, Gorsuch voted to allow Christian employers to discriminate against customers based on the employers’ religious beliefs. His opinion also buttressed the right of employers, on religious grounds, to refuse to pay for contraception.
- Favors the death penalty
- From Wikipedia: “Gorsuch has never had the opportunity to write an opinion on Roe v. Wade. However, in his 2006 book The Future of Assisted Suicide and Euthanasia, Gorsuch wrote that he opposed euthanasia and assisted suicide and that “all human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong.”
You can read more about Gorsuch’s philosophy on the ScotusBlog. He is only 49; if confirmed, he’ll be tilting the court to the Right for a long time.
Here’s the New York Times‘s “ideology line” showing where Gorsuch falls on the spectrum of Supreme Court justices, taken from an analysis by Lee Epstein, Andrew D. Martin and Kevin Quinn.
Should Gorsuch be confirmed? If Obama had not nominated Garland, whose nomination was simply deep-sixed—and wrongly—by Republicans, then Gorsuch is an appropriate candidate for a conservative President and a conservative seat on the Court. By all accounts , he’s smart and not horribly divisive. His record itself warrants confirmation.
But, mindful of l’affaire Merrick, Senate Democrats will be putting up a fight on this one. I’d say that they shouldn’t do that, as it’s just as obstructionist as we have accused Republicans of being. Fighting Gorsuch is a losing battle, and even if confirmed, he’s not going to change the court: it will still be 5-4 in favor of conservative justices, with the possibility of Anthony Kennedy being a swing vote toward the progressive side.
What happened to Merrick Garland was reprehensible, but we can’t compensate for that by going after Gorsuch. Time to suck it up, for that’s all we can do.