We ought to have no doubt as to President Trump’s intentions for the U.S. Supreme Court. He was clear during the campaign that any nominee of his would vote to overturn Roe v. Wade. His choices for the next justice, released by his campaign in September 2016, were vetted by the Heritage Foundation and the Federalist Society, pillars of the ultra-conservative infrastructure. So Trump’s ultimate nomination of Judge Neil Gorsuch shouldn't be a surprise to any of us.
On the 10th Circuit Court of Appeals, Judge Gorsuch sided overwhelmingly with corporate interests, dismissive of case law allowing federal agencies to decide how to implement their mandates to protect public health and safety.
Perhaps no case is a more notorious test of women’s rights, religious rights, and agency power than Hobby Lobby v. Burwell. There the Supreme Court held, egregiously, that a closely held corporation could use religious grounds to reject a government regulation that employee health insurance include coverage for all forms of contraception, unless the government can demonstrate a “compelling” state interest in restricting religious conduct. In Hobby Lobby, the court ruled women’s interests were not “compelling” enough to overcome the newly created rights of the employer. Think about that.
As a member of the 10th Circuit, Judge Gorsuch wrote his own, far more extreme take on Hobby Lobby, based on the assertion that “All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others.” He continued, “For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability.”
The religious rationale has become the basis for claims that one can refuse to serve gays, to justify noncompliance with child labor laws, to negate anti-kidnapping laws; and to fine a transgender individual, also justified by the employer’s religious objection. These instances may not survive challenge now, but if Judge Gorsuch gets his way, you might ask how they differ in logic from refusing to serve African Americans as the inferior descendants of Ham, as was once commonly claimed. I haven't come up with a reasonable answer.
Gorsuch is a jurist straight from central casting in appearance and demeanor, albeit not in ideology. He will likely adopt a stance of vague neutrality at his hearings and try to hide his established views in his pre-hearing questionnaires. He has been on a charm offensive visiting with senators one by one. But charm is not compassion, independence, or an indicator of fairness, and it is certainly not the basis for a seat on the Supreme Court.
Judges are always applying their values to the definition of words — as to what constitutes “compelling,” at the very least. So it is fair to look at other examples of the values applied by Judge Gorsuch. Such an examination does not paint a pretty picture.
In one dissent, Judge Gorsuch upheld the termination of a truck driver whose trailer brakes failed in freezing weather. After being instructed to stay with cargo in the trailer, the truck driver waited hours for help and began to think he was freezing to death. So he unhitched the trailer and drove for help. Judge Gorsuch stood apart from the majority of the court in completely ignoring the driver’s peril and suggesting that federal law did not protect the driver from the company’s charge that he had disobeyed instructions and abandoned the cargo.
In another case, Judge Gorsuch held that a police officer did not use excessive force against a nine-year-old when she put him in a twist-lock hold that broke the child’s collarbone. And he opined that an assistant professor who, after 6 months of cancer treatment, had been given enough time to recover, even though her doctor warned her not to return to work right away because of an ongoing flu epidemic at the university. (Other courts ruled that such cases warranted a jury trial.)
We need to abandon the charade that Judge Gorsuch is just moderately conservative or has an appropriately modest view of precedent on the court. As a Supreme Court justice there will be no check on his approach to the law, rooted as it is in extreme right wing legal theories.
Importantly for me, and for Jews everywhere, is that we are commanded by our faith to pursue justice. Jews have always been and should always be advocates for the powerless. So we ask ourselves, as Judge Gorsuch did, “to what degree we are willing to be involved in the wrongdoing of others?” We ought not condone his cramped judicial philosophy. So you might say my “religion” makes me reject Judge Gorsuch.
He's supposed to be okay with that, right?
Nancy K. Kaufman is the chief executive officer of the National Council of Jewish Women, a grassroots organization inspired by Jewish values that strives to improve the quality of life for women, children, and families and to safeguard individual rights and freedoms.