WASHINGTON ― Sen. Patrick Leahy (D-Vt.) on Tuesday pressed Supreme Court nominee Neil Gorsuch about his views on discrimination against certain religious groups, using President Donald Trump’s controversial travel ban as an example of a government policy that may do just that.
“Does the First Amendment allow the use of a religious litmus test for entry into the United States?” asked Leahy, the No. 2 Democrat on the Senate Judiciary Committee, which is considering the president’s nominee to fill the seat left empty by the late Justice Antonin Scalia.
Gorsuch resisted the question, noting that there is litigation now attempting to resolve the legality of Trump’s executive order restricting travel and refugee resettlement from certain Muslim-majority countries. When Leahy pushed back, noting he’s not referring to any particular case, Gorsuch gave a broad constitutional standard for religious freedom.
“Senator, we have a free exercise clause that protects the free exercise of religious liberties by all persons in this country,” he said. “If you’re asking me how I apply it to a specific case, I can’t talk about that, for understandable reasons.”
Notably, the rulings that so far have touched on the legality of Trump’s travel restrictions ― in Virginia, Maryland and Hawaii ― have looked to a different part of the First Amendment: the one that prohibits the government from favoring or disfavoring one religion over others. But there’s debate about which part of the Constitution applies, and later rulings may clarify the exact scope of these alleged constitutional violations.
Leahy then got explicit about Trump and his stated desire, during the presidential campaign, to institute “a total and complete shutdown of Muslims entering the United States.” And he pointed out that a Republican congressman has suggested that Gorsuch needed to be confirmed so that he could help uphold one of the president’s key executive orders.
“Senator, a lot of people say a lot of silly things,” Gorsuch responded, noting that the congressman “has no idea how I’d rule in that case.”
“It would be grossly improper of a judge” to make commitments during a confirmation hearing about a particular result he’d reach about a case, he added.
The federal government is presently facing at least two dozen lawsuits across the country. They all seek to invalidate Trump’s executive orders affecting travel, which brought chaos, protests and headaches on the new administration. For now, a number of court orders have kept the restrictions from being enforced.
Sooner or later, at least one of these orders is expected to reach the Supreme Court, where Gorsuch could play a pivotal role.