Commentary Law and Policy

Why We Must Not Normalize the Gorsuch Nomination

Jessica Mason Pieklo & Imani Gandy

Judge Neil Gorsuch may be a really nice guy, but that doesn't matter if his record on every issue progressives care about is dangerously regressive.

The nomination of Judge Neil Gorsuch to the U.S. Supreme Court took an important but largely unnoticed step forward over the weekend. Gorsuch submitted to the Senate Judiciary Committee his completed appointment questionnaire, which discloses his work history, professional affiliations, publications, educational background, and the like. In addition to confirming that Gorsuch went to all the best schools and took all the right jobs to become an associate justice of the Supreme Court, the questionnaire also shows that he had a pet project: working on detention and detainee treatment policy during the Iraq War.

For a year, Gorsuch worked at the U.S. Department of Justice (DOJ) under then-Attorney General Alberto Gonzales. The time Gorsuch spent there on detention and detainee treatment issues, as well as his background in conservative religious jurisprudence, should raise raise flags for the years under President Donald Trump. Between the increased ICE immigrant raids and the Trump administration’s legal fight over the Refugee and Visa Order, also known as the Muslim ban, it’s clearer why Gorsuch is Trump’s choice. The judge will almost certainly defend both the expansion of corporate rights under the guise of religious objections launched by Christian conservatives, as well as executive power overreach under the guise of national security. All in all, when Gorsuch’s time at the DOJ with Gonzales is taken together with his opinions as an appellate judge, a fuller, more troubling picture of Trump’s nominee emerges beyond his twinkly demeanor and sterling academic pedigree.

During that time, Gorsuch was attending roundtables on combating terrorism—largely focused on detention policy during the Iraq War—sponsored by the Council on Foreign Relations, including an event in December 2005 where he met with President George W. Bush. These roundtables also included a January 2006 forum at Georgetown University Law Center with Gorsuch’s boss, Gonzales.

Prior to becoming attorney general, Gonzales helped authorize the “torture memos” that were used to justify waterboarding and other criminal acts of torture the Bush administration employed in the name of national security. And while he held the position, Gonzales was the chief legal defender of the Bush administration’s “extraordinary rendition” policy: the abduction of individuals deemed “enemy combatants,” followed by their transfer out of the country for “enhanced interrogation.” Gonzales also authorized the use of warrantless surveillance of U.S. citizens under an Executive Order that greatly expanded the power of the National Security Agency to conduct domestic surveillance, also in the name of national security.

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This was the Department of Justice that Gorsuch worked for, and at a time when the legal defense of the Bush administration’s torture policies was at its center.

There is a growing consensus among the federal courts hearing the challenges to Trump’s Refugee and Visa Order that it violates the First Amendment specifically because it equates Muslims with terrorists and targets them for unequal treatment under the law. But the rationale used by the Trump administration for enacting the ban is very much the same rationale used by the Bush administration for its detention policies: National security depends on the president having unfettered and largely unchecked powers, including the power to detain people indefinitely. We know Trump wants to bring back torture. It’s only a matter of time before we see the administration actually do it.

One of those cases challenging the Muslim ban will likely come before the Roberts Court in the near future. This will almost certainly happen after Gorsuch is, presumably, confirmed. So it’s important we get a very clear picture of where he stands on indefinite detention and torture, and what the scope of his work on these issues entailed while working for Gonzales. Based on Gorsuch’s opinions from the Tenth Circuit, we know that in addition to helping shape the law on corporate religious rights, he is willing to side with law enforcement in most cases of excessive force. He did issue one opinion in favor of an immigrant who was improperly denied an opportunity to challenge a deportation order, which means there’s a chance he might rule against the Trump administration’s ban. We don’t know, but exploring his time working with Gonzales can only help flesh out where he would land in a case that puts executive power and due process rights squarely at odds.

It’s also why pieces focusing on his personality rather than his record are not helpful right now. They obscure Gorsuch’s record and give the administration a pass for nominating an ideologue. They also distract from a very necessary conversation we need to be having about both.

“It’s very very hard to dislike Neil Gorsuch,” tweeted Mark Joseph Stern, who covers law and LGBTQ issues for Slate, linking to an article in which he describes Gorsuch as “a brilliant, witty, handsome, eloquent, perfectly pedigreed judge.” He later describes Gorsuch as a “solid vote against gay rights on the court,” which would seem to matter more than Gorsuch’s ability to crack a good joke.

Neal Katyal, former solicitor general for President Barack Obama, also penned a heartfelt op-ed in the New York Times that Gorsuch deserves liberal support because he will bring “fairness and decency to the job, and a temperament that suits the nation’s highest court.”

Temperament-wise, Gorsuch would probably never roll his eyes from the bench at another justice, as Justice Samuel Alito has, nor would he openly disagree with the president of the United States during a State of the Union address, as Alito also did. Gorsuch is not openly homophobic, so he’s unlikely to compare homosexual sex to bestiality or drug addiction like Justice Antonin Scalia did, though he will almost certainly still vote against LGBTQ rights.

That nice-guy sheen on top of impressive academic credentials is what is expected to carry Gorsuch through the confirmation process. It has prompted the kind of deference for the Gorsuch nomination that clashes so strongly with criticism of his intellectual counterpart Alito. Slate‘s Stern, for example, dismissed Alito as a crank while Kurt Eichenwald of Newsweek disparaged him as the “worst justice in history,” writing that  “[n]o doubt, Gorsuch would be a better judge than Alito (and so would my dog.)”

The problem is Gorsuch is at least as bad, if not arguably worse, than Alito, Scalia, and maybe even Justice Clarence Thomas on issues progressives care about.

If Gorsuch were remotely mainstream, then the Judicial Crisis Network (JCN), the Bush-era conservative judicial advocacy group with a mission to stack federal and state courts with ultra-right judges, would not be backing him. This dark money group has already deployed an ad featuring soft piano music playing behind a former Obama administration attorney who talks about how “extraordinarily fair-minded” Gorsuch is and urges people to support his confirmation. It’s a public relations campaign specifically designed to turn attention away from Gorsuch’s record and back to his gosh-darn likable nature.

The last time that JCN spent money on a Supreme Court confirmation was to ensure Alito’s. Prior to that, JCN worked to get Chief Justice Roberts confirmed.

So the fact that the JCN has thrown its weight behind Neil Gorsuch should tell you something about the sort of Supreme Court justice he will be: likely the most conservative on the court.

This is the more complete picture emerging of Gorsuch as a potential associate Supreme Court justice. He stands behind corporate religious rights and worked with the man who endorsed waterboarding and warrantless wiretapping as legal. One of the shadiest conservative dark money groups is running ads to support him.

Gorsuch also clerked for Supreme Court Justice Anthony Kennedy, arguably the most important and moderate voice of the conservative justices. Does Gorsuch’s relationship with Kennedy mean he has his ear on crucial issues concerning immigrant detention, the Muslim ban, and the furious effort to roll back civil rights gains in the name of religious belief? It’s more likely than not.

These details raise important questions for both the Judiciary Committee and the press as Gorsuch’s confirmation moves along. Just how involved was he during the Bush years with detention and torture policy? What exactly are his views on the use of executive authority to hold people the state deems “enemy combatants” under the guise of protecting national security?

Does he believe waterboarding and related acts of torture are legal and can be justified, as his former boss Alberto Gonzales did?

His opinions on the Tenth Circuit tell us plenty about how Gorsuch will likely rule on civil rights cases that come before the court. Like Alito, Gorsuch will favor religious objections over complying with civil rights laws, likely voting against both reproductive rights and LGBTQ rights. He’s the guy the right nominated to replace Scalia. None of that should be a surprise.

But it’s Gorsuch’s stances on executive power, national security, and the use of force that need the most pointed look, because so far they have been the least examined. This is an administration that is laser focused on a campaign of white supremacy. Within the first three weeks, Trump dropped executive orders targeting Muslims and upping the power of the Department of Justice to conduct urban sweeps and suggest laws making it harder to hold police officers accountable for constitutional violations.

It doesn’t matter that Gorsuch has a good background or doesn’t come across as a jerk. Frankly, he’s the only qualified and competent nominee the Trump administration has put forward yet. In that sense he’s a breath of fresh air. But his record deserves a much more thorough critique than it is currently getting. There’s not a whole lot of time left to do so, especially given Senator Chuck Grassley (R-IA) announcing Gorsuch’s confirmation hearings would begin March 20. Gorsuch is also young by nominee standards. If he gets confirmed, he’s going to be on the bench for a long time alongside Alito and Roberts. Their combined ability to carve away civil and human rights protections will be significant and long-lasting.

So who cares if Gorsuch is a nice guy? We can’t afford to have him on the court.

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