President Donald J. Trump has named Judge Neil Gorsuch as his first Supreme Court nominee. Let the confirmation games begin!
Of course, the Supreme Court is a vital part of our government’s delicate balance of power. There is great anxiety created for some by the nomination of a known conservative who has issued opinions that are considered by liberal activists as out of the “mainstream.” President Trump did just as he promised during the campaign, to nominate a conservative judge in the mold of Antonin Scalia.
Judge Gorsuch has been part of judicial decisions such as favoring the religious rights of corporations in the Hobby-Lobby case. He also authored decisions that have been described as “anti-worker.” Members of the civil rights old guard like the Rev. Jesse Jackson recently voiced concerns that Gorsuch’s judicial approach would likely “constrict” traditional civil rights protections. I hope this is not the case.
Judge Gorsuch seems to have qualifying academic credentials. For many however, that is not enough. Some believe, as I do, that the court should not simply reflect the political disposition of the president who appointed the particular justice. This point of debate was exacerbated during last year’s failed nomination of Judge Merrick Garland, who did not even get a hearing after President Obama nominated him to the court shortly after Justice Scalia’s unexpected death in February 2016. That action, on behalf of Senate Republicans, angered Democrats who believed that it was a slap in the face to both Judge Garland and President Obama. Republicans now might have to suffer a long battle over Gorsuch’s confirmation because the same rationale that prevented a vote on Garland might slow his confirmation process.
This entire discussion presupposes that a justice will follow the political ideology of the president who appointed him. History has shown that this is not always the case. Earl Warren, who once ordered internment of Japanese citizens while attorney general of California during World War II, was appointed by Republican President Dwight Eisenhower to the court but became one of the great liberal jurists in American history. Justice David Souter, appointed by George H.W. Bush, had served conservative Republicans for many years, but once reaching the Supreme Court became a reliable liberal vote on many civil rights issues. Even current Chief Justice John Roberts surprised most legal scholars when he voted to find Obamacare constitutional, drawing the ire of some conservatives.
The business of predicting how a justice will vote decades into the future can be tricky. What is more important, however, is that whoever sits on the high court should understand the value of fundamental fairness for human beings of all backgrounds.
Jose Felipe Anderson is a Professor of Law at the University of Baltimore School of Law and an Adjunct Professor of Legal Studies and Business Ethics at the University of Pennsylvania’s Wharton School.