Neil Gorsuch Would Be a Disaster for Women
Only in our current blazing hellfire of a political landscape could a fresh-off-inauguration president nominate a far-right Supreme Court justice like Neil Gorsuch and have it branded reasonable and a place of potential compromise.
It's true that Gorsuch is not wholly unfit for the job to which he has been nominated, nor is he a white supremacist Trump sycophant, nor is he flat-out hostile to the very existence of the role he has been asked to fill. Before this particular administration, none of that needed to be said, because, well, there was some baseline from which the executive branch operated. But the bottom has dropped out from under that floor, and just when we think we've hit the furthest depths of it, our president manages to go lower. Democrats may be trying to heed the advice of former first lady Michelle Obama - "when they go low, we go high" - but Republicans have gone so low with such stunning speed and efficacy that Democrats are left trying to dig themselves out of subterranean darkness with teaspoons.
It is easy, in this exhausting and every-day-more-shocking environment, to look at a Supreme Court nominee who is at least on paper technically qualified for the job (insofar as he is a federal judge and not a comically evil acolyte of Pepe the Frog) and say, “OK, maybe this is where Democrats can compromise.”
Don’t. Under any other administration, Democrats would reject Gorsuch. To paraphrase our last Republican president, there is a real danger in the soft bigotry of low expectations - just because Trump has lowered our expectations so radically doesn't mean we should acquiesce when he does something approaching normal levels of bad rather than nuclear levels of bad.
Gorsuch, as many have already reported, is a conservative jurist in the vein of Antonin Scalia, the judge he will replace. Scalia died while President Barack Obama was still in office, and Republicans stubbornly blocked the then-president's attempt to appoint Merrick Garland to the bench; those same Republicans are now preemptively crying foul at reports that Democrats, embittered by the GOP's obstruction, may repay the favor. To be sure, Gorsuch isn't the extremist of extremists like Roy Moore, the Alabama judge who displayed the Ten Commandments outside his courthouse and was removed from his position as chief justice of the Alabama Supreme Court after he refused to take it down, only to be reelected to the position and then suspended for refusing to enforce the Supreme Court decision on same-sex marriage. Yes, it could be worse. But should Gorsuch reach the bench, his mark on legal history will be an inky blot - especially for women and minorities.
Where Gorsuch has really made a name for himself is in a new favorite legal theory among right-wing lawyers and advocates: "religious freedom." Under this banner, conservatives are putting into place a number of ways individuals and even corporations will be able to skirt generally applicable laws and discriminate with impunity. We already have laws that allow reasonable accommodations to be made for religious belief and expression - exempting Jehovah's Witnesses from military service, for example - but it gets trickier when one person's claimed religious belief impacts others negatively.
We saw how this played out just a few years ago in the 2014 Hobby Lobby case, which eventually went to the Supreme Court. Gorsuch used this theory of religious freedom in his concurrence, arguing that even owners of secular, for-profit corporations should be able to cast their religious beliefs on their employees - in this case by refusing to offer health insurance plans that cover contraception, as required by the Affordable Care Act. Now, women who work for for-profit companies - not churches or even religiously affiliated workplaces - find that their access to birth control depends on whether their boss thinks women should be able to have non-procreative sex.
And Hobby Lobby was just the canary in the coal mine of religious encroachments on our rights. Much has been made of the fact that one thing Trump didn't do this week was rescind Obama-era anti-discrimination protections for LGBT federal workers. That's great - but the catch is that the kind of expansive Supreme Court "religious freedom" rulings conservatives are gunning for could make orders like Obama's irrelevant anyway. The ideal religious freedom laws, for staunch conservatives, would allow businesses and individuals to refuse to hire a transgender person to work at a non-religious bookstore or refuse to serve a lesbian couple at a diner or fire an unmarried woman who became pregnant. Individuals would simply need to say, "This is my religious belief," and have free rein to discriminate. Even if there were a state or local law against that kind of discrimination - and in many states and cities, there are exactly those kinds of laws, which make it illegal for employers or business owners to discriminate on the basis of sexual orientation, religion, gender, race, or national origin - a sweeping Supreme Court ruling on religious freedom that goes even further than Hobby Lobby could undercut these laws and allow bigotry under the cover of religious belief.
That is what conservative scholars are pushing. And that's exactly what they would get in Judge Gorsuch.
Gorsuch is also likely a threat to abortion rights. His record on abortion is sparse, but his Hobby Lobby decision strongly hints at anti-abortion and anti-contraception leanings - his emphasis on religious freedom is in line with a broader legal perspective that also does not see abortion or contraception as fundamental rights. Trump also promised to only appoint a staunch anti-abortion judge, and anti-abortion-rights advocacy groups are already cheering the Gorsuch nomination.
Gorsuch also opposes death with dignity laws, which allow the terminally ill to end their own lives peacefully and in minimal pain, with assistance; he feels so strongly against giving the dying this last comfort that he wrote an entire book on the topic. Since that writing, several states have taken up the question of death with dignity, and there is a non-zero chance the issue could end up before the court in the coming years. Gorsuch's previous writings indicate he may stymie efforts of states to allow their terminally ill citizens to choose how they pass on.
None of this, of course, is outside of the conservative mainstream. But the conservative mainstream has moved far to the right over the past two decades to positions that do serious harm to Americans - and particularly the most vulnerable among us, including women, LGBT people, immigrants, and those in dire need of health care. Gorsuch would stay firmly on that rightward - and ultimately backward - path. Gorsuch's extreme religious-right views may seem normal after several decades of the organized religious right pushing the GOP rightward, and they may even seem more tolerable in the age of Trump. But his views are nonetheless regressive and dangerous, as is his youth - he's just 49, which could put him on the court for as many as four decades. Democrats with a spine should block him. After all, this isn't an appointment that will last only a few years; it's for life, which for Gorsuch could be long, and will shape the course of the United States for decades in the future.
Few nominees are more important to oppose.
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