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The “options” it wants to expand are for terminally ill patients to obtain a lethal dose of barbiturates to take if and when they decide to die. This is an issue on which Gorsuch is an expert, as the author of a book on the subject, an essay on constitutional law and moral philosophy titled “The Future of Assisted Suicide and Euthanasia.” To save time for the senators who will have to vote on his confirmation: He doesn’t care for the idea.
The issue may not have a lot of current salience at the Supreme Court; a 2006 ruling basically said the states can decide this question for itself, upholding Oregon’s first-in-the-nation law on physician-assisted dying. Five other states — Washington, Montana, Vermont, California and Colorado — have passed similar laws, and there are bills pending in at least 16 others. In Vermont, a suit seeks a religious exemption for doctors from the requirement to inform terminally ill patients of their “end-of-life options.” Compassion & Choices is opposing the suit, although it is undoubtedly a long way from reaching the Supreme Court.
But C&C’s director of legal advocacy, Kevin Diaz, is already worried. Gorsuch wrote a concurring opinion in the 2013 Hobby Lobby case, holding that businesses could refuse on religious grounds to refuse to pay for contraceptive care for their employees. “A judge who is willing to allow others, including corporations, to impose their religious beliefs on individuals making personal health care decisions at the end of life would be a dangerous addition to the nation’s highest court,” Diaz says.
The crux of Gorsuch’s argument, which he pursues through thousands of years of Western philosophy and centuries of American jurisprudence, is summed up pithily in his first chapter: the idea “that all human beings are intrinsically valuable and the intentional taking of life by private persons is always wrong.”
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Schumer (D-NY) voted to confirm Gorsuch for the 10th Circuit Court of Appeals in 2006, but now says that “the burden is on Judge Neil Gorsuch to prove himself to be within the legal mainstream and, in this new era, willing to vigorously defend the Constitution from abuses of the Executive branch and protect the constitutionally enshrined rights of all Americans. "Given his record, I have very serious doubts about Judge Gorsuch's ability to meet this standard," Schumer said. But a number of law professors told CNSNews.com that attempts to portray the conservative jurist as an outlier who is outside the nation’s legal mainstream are at odds with reality, with most predicting that Gorsuch will be confirmed by the Senate. “The argument that Gorsuch is out of the mainstream is absurd,” Jonathan Adler, a constitutional law professor at the Case Western Reserve University School of Law, told CNSNews.
In a February 1 column in The Washington Post, Adler also pointed out that “the argument that the only reason Senate Democrats would filibuster Gorsuch is payback for [not confirming Obama nominee Merrick] Garland is complete and utter nonsense,” pointing to Democrats’ vote to filibuster then-Supreme Court nominee Samuel Alito in 2006. “As the record plainly shows, Senate Democratic leaders and progressive activists…are instead pushing Senate Democrats to simply do what they’ve done before and said they would do again,” Adler wrote. “I think [Gorsuch] is an excellent nominee. His views are well within those of justices that Republican presidents have nominated and the Senate has confirmed in the past,” John Yoo, a professor at the University of California at Berkeley School of Law, told CNSNews. “If Gorsuch is an extremist, then Democrats are saying that Chief Justice John Roberts, Justice Clarence Thomas, Justice Samuel Alito, and indeed the late Justice [Antonin] Scalia are extremists.
“Liberals may disagree with an approach to interpretation based on the constitutional text and history, but that is well within the mainstream,” added Yoo, who once clerked for Justice Thomas. “In fact, it is the one that most Americans would support over an alternative that allows judges to advance a living Constitution. “I expect [Gorsuch] will be confirmed, and if Democrats were smart they would join Republicans to do so,” Yoo added. “But I expect that Democrats will launch a bruising fight, one that they will lose.” “Gorsuch is an outstanding jurist,” agreed Professor Ilya Somin, who teaches at the George Mason University Antonin Scalia School of Law. “I think his decisions are well within the mainstream, with one notable exception: His stance on Chevron deference, where he would eliminate judicial deference to administrative agencies in cases where the law is ambiguous.
“Gorsuch's views on this question are a significant challenge to the dominant mainstream view,” Somin told CNSNews. “Personally, I happen to think Gorsuch is correct on this issue. But at least until recently, very few judges were willing to go so far. “It is possible, however, that what we are seeing is the beginning of a breakdown of the mainstream consensus on this question. Even with Gorsuch on the court, Chevron is highly unlikely to be overruled any time soon. But it will become a disputable issue rather than unquestioned dogma. “As to whether he will be confirmed, I think it is highly likely that he will be,” Somin added. “I doubt anything can stop him other than some major, unforeseen scandal or other unexpected damaging revelation.”
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THE STAKES
The direction of the country for years to come could be at stake as the Senate begins consideration of President Trump’s first Supreme Court nominee, Neil Gorsuch. Will Democrats, still angry over the treatment of Barack Obama’s nominee Merrick Garland, band together to block him? Or will they hold their fire for Trump’s second pick, which will likely come in the next four years?
THE STORY
Trump unveiled his choice to fill the late Justice Antonin Scalia’s seat with typical showmanship, leaving the media in suspense between his rumored top picks Gorsuch and Judge Thomas Hardiman until the last possible minute — leading to comparisons to “The Bachelor.” But despite the theatrics around the announcement, Gorsuch is an establishment pick who would have likely been on any Republican president’s shortlist for the Supreme Court. The Colorado federal appellate judge went to Harvard Law School and is respected by both liberal and conservative colleagues. President Barack Obama’s former acting solicitor general penned an op-ed endorsing him after he was announced, calling him a man of “fairness and decency.” SCOTUSblog argues that Gorsuch is ideologically similar to the conservative Scalia, given his strict textualism, lively opinions and disapproval of attempts to clear public spaces of religious expression. This presents a problem for Senate Democrats, who were eager to argue that Trump had picked a jurist well out of the “mainstream” so they could block consideration of the nominee. The lawmakers are still angry over Senate Republicans’ unanimous refusal to even consider Garland. Last month, Sen. Chuck Schumer argued that the seat was “stolen” and he might attempt to hold it open until 2020.
Judge Neil Gorsuch speaks after being nominated by President Trump for the Supreme Court on Jan 31. His wife, Louise, is at right.
A minority is able to block a Supreme Court nominee thanks to the filibuster, which takes 60 votes to overcome. Republicans currently have 52 seats — meaning they need a good chunk of Democrats to side with them to bring Gorsuch’s nomination to a vote. But Majority Leader Mitch McConnell, R-Ky., has already hinted in multiple interviews he would be willing to change Senate rules to end the filibuster. On Wednesday, Trump joined in this call, urging Senate Republicans to take the so-called nuclear option and change the rules. “If we end up with that gridlock, I would say if you can, Mitch, go nuclear,” Trump said. This has put the Democrats in a difficult situation. On the one hand, they may want to let Gorsuch through the process, reserving the 60-vote filibuster standard for possible future Trump picks. But on the other hand, Democrats are defending more than 20 seats in 2018 while Republicans only have eight up for reelection, which means it’s possible they will become an even smaller minority in two years, giving them reason to want to stage the fight now. Democratic senators are also facing pressure from their base to oppose Trump’s nominees, and will likely face blowback if they let Gorsuch through without a fight.
Democrats who want to block Gorsuch will paint him as out of the “mainstream,” pointing to his decision allowing religious employers not to provide health plans that cover contraception and saying he favors corporations’ rights over individuals. But at least one conservative group, the Judicial Crisis Network, has already launched a $10 million advertising campaign targeting Senate Democrats in red-leaning states, pressuring them to allow a vote on Gorsuch. “We will ultimately force vulnerable senators to choose between obstructing and keeping their Senate seats,” the group’s chief counsel, Carrie Severino, said.
THE PLAYERS
McConnell and Schumer call the shots for their respective parties in the Senate, although the chairman of the Judiciary Committee, Chuck Grassley of Iowa, and the ranking Democrat, Dianne Feinstein of California, will play a role in implementing their leaders’ strategies. Democrats will grill Gorsuch on his philosophy and try to pin him down on hot-button issues such as abortion, but unless something disqualifying turns up in his background, his fate depends more on larger political forces than on the answers he may give at his hearing. The wild cards are the other eight justices, especially the two oldest, Ruth Bader Ginsburg, 83, and Anthony Kennedy, 80. Any signs they might leave the court soon would change the calculus about Gorsuch in unpredictable ways.
Stories to watch: The looming battle over the Supreme Court
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Judge Gorsuch’s Record Puts Him Well Within Nation's Legal Mainstream
February 2, 2017 – Although Senate Minority Leader Chuck Schumer (D-NY) says he has “serious doubts” about whether Neil Gorsuch, President Trump's Supreme Court nominee, is in the country's legal mainstream, several law professors told CNSNews.com that the Denver appellate judge's record is squarely within that mainstream.
Schumer (D-NY) voted to confirm Gorsuch for the 10th Circuit Court of Appeals in 2006, but now says that “the burden is on Judge Neil Gorsuch to prove himself to be within the legal mainstream and, in this new era, willing to vigorously defend the Constitution from abuses of the Executive branch and protect the constitutionally enshrined rights of all Americans. "Given his record, I have very serious doubts about Judge Gorsuch's ability to meet this standard," Schumer said. But a number of law professors told CNSNews.com that attempts to portray the conservative jurist as an outlier who is outside the nation’s legal mainstream are at odds with reality, with most predicting that Gorsuch will be confirmed by the Senate. “The argument that Gorsuch is out of the mainstream is absurd,” Jonathan Adler, a constitutional law professor at the Case Western Reserve University School of Law, told CNSNews.
In a February 1 column in The Washington Post, Adler also pointed out that “the argument that the only reason Senate Democrats would filibuster Gorsuch is payback for [not confirming Obama nominee Merrick] Garland is complete and utter nonsense,” pointing to Democrats’ vote to filibuster then-Supreme Court nominee Samuel Alito in 2006. “As the record plainly shows, Senate Democratic leaders and progressive activists…are instead pushing Senate Democrats to simply do what they’ve done before and said they would do again,” Adler wrote. “I think [Gorsuch] is an excellent nominee. His views are well within those of justices that Republican presidents have nominated and the Senate has confirmed in the past,” John Yoo, a professor at the University of California at Berkeley School of Law, told CNSNews. “If Gorsuch is an extremist, then Democrats are saying that Chief Justice John Roberts, Justice Clarence Thomas, Justice Samuel Alito, and indeed the late Justice [Antonin] Scalia are extremists.
“Liberals may disagree with an approach to interpretation based on the constitutional text and history, but that is well within the mainstream,” added Yoo, who once clerked for Justice Thomas. “In fact, it is the one that most Americans would support over an alternative that allows judges to advance a living Constitution. “I expect [Gorsuch] will be confirmed, and if Democrats were smart they would join Republicans to do so,” Yoo added. “But I expect that Democrats will launch a bruising fight, one that they will lose.” “Gorsuch is an outstanding jurist,” agreed Professor Ilya Somin, who teaches at the George Mason University Antonin Scalia School of Law. “I think his decisions are well within the mainstream, with one notable exception: His stance on Chevron deference, where he would eliminate judicial deference to administrative agencies in cases where the law is ambiguous.
“Gorsuch's views on this question are a significant challenge to the dominant mainstream view,” Somin told CNSNews. “Personally, I happen to think Gorsuch is correct on this issue. But at least until recently, very few judges were willing to go so far. “It is possible, however, that what we are seeing is the beginning of a breakdown of the mainstream consensus on this question. Even with Gorsuch on the court, Chevron is highly unlikely to be overruled any time soon. But it will become a disputable issue rather than unquestioned dogma. “As to whether he will be confirmed, I think it is highly likely that he will be,” Somin added. “I doubt anything can stop him other than some major, unforeseen scandal or other unexpected damaging revelation.”
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