The Democrats face a difficult choice with regard to President Donald Trump’s nomination of Neil Gorsuch for the Supreme Court: Confirm a 49-year-old conservative who will be on the court for decades or filibuster him and risk that the Republicans will change Senate rules to eliminate the filibuster.
Ultimately, I believe that the Democrats have nothing to lose by filibustering Gorsuch. If they don’t do so, he gets confirmed, and if they do filibuster and the Republicans eliminate the filibuster, he gets confirmed. Filibustering Gorsuch is important to send a message to President Trump and the country: Very conservative nominees, who are outside of the judicial mainstream, should not be appointed and will be opposed.
President Trump could have picked a moderate Republican to fill the seat on the court left vacant by the death of Justice Antonin Scalia. Some on Trump’s list were unquestionably more moderate then Gorsuch. Especially under the unique circumstances, a moderate pick would have made great sense. This is a seat on the Supreme Court that Republicans stole by their refusal to consider President Obama’s nomination of Chief Judge Merrick Garland.
Neil Gorsuch would be a very conservative Supreme Court justice, almost exactly like Antonin Scalia. Gorsuch, like Scalia, professes a belief in originalism. This is the view that the meaning of a constitutional provision is fixed at the time that it was enacted and can be changed only through the amendment process. Gorsuch has said: “Judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be.”
Never in American history, thankfully, have a majority of the justices accepted originalism. If that were to happen, there would be a radical change in constitutional law. No longer would the Bill of Rights apply to state and local governments. No longer would there be protection of rights not mentioned in the text of the Constitution, such as the right to travel, freedom of association, and the right to privacy. This would mean the end of constitutional protection for liberties such as the right to marry, the right to procreate, the right to custody of one’s children, the right to keep the family together, the right of parents to control the upbringing of their children, the right to purchase and use contraceptives, the right to abortion, the right to refuse medical care, the right to engage in private consensual homosexual activity. No longer would women be protected from discrimination under equal protection.
The original understanding of the Constitution is unknowable and even if it could be known, should not be binding today. Under an originalist philosophy, it would be unconstitutional to elect a woman as president or vice president because the Constitution refers to these officeholders as “he” and the framers unquestionably intended that they would be male. Under originalism, Brown v. Board of Education was wrongly decided because the same Congress that ratified the Fourteenth Amendment also voted to segregate the District of Columbia public schools.
Originalism never was meant to be the method of constitutional interpretation. Long ago, Chief Justice John Marshall reminded us that “we must never forget that it is a Constitution we are expounding,” a Constitution “meant to be adapted and endure for ages to come.” Throughout American history, the Supreme Court has regarded the Constitution as a living document, which is the only way a country can be governed in the 21st century under a charter written in the 18th century for an agrarian, slave society.
In 1987, the Senate overwhelmingly rejected Robert Bork for a seat on the Supreme Court entirely because of his originalist approach to constitutional law. Gorsuch’s views are no different from Bork’s or Scalia’s.
As a judge on the U.S. Court of Appeals for the Tenth Circuit, Gorsuch has favored employer over employee in civil rights cases. He has rejected the idea of a separation of church and state, repeatedly voting to allow religious symbols on government property. He often has voted against claims of reproductive freedom.
The Democrats should do whatever they can, even if it ultimately fails, to keep someone with Gorsuch’s ideology from being on the Supreme Court.
Erwin Chemerinsky is dean of the UC Irvine School of Law.
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