On Tuesday night, President Donald Trump nominated Denver-based 10th Circuit Court of Appeals justice Neil Gorsuch, a native Coloradan with an Ivy League background and a Ronald Reagan-approved pedigree, to fill the seat vacated by the late Justice Antonin Scalia on the United States Supreme Court. But while Gorsuch, 49, was assured and impressive in what was essentially his national debut on January 31, his selection immediately triggered a partisan backlash that is likely to roil the American political scene for many months to come.
Among the organizations to immediately decry his selection was the National Abortion and Reproductive Rights Action League (NARAL), whose president, Ilyse Hogue, released a statement in which she said that Gorsuch represents "a direct threat to Roe v. Wade and the promise it holds for women's equality," and provided evidence shared below to back up her claim.
In the meantime, Colorado politicians from the Democratic side of the fence found themselves in the position of having to juxtapose home-state pride against partisan realities.
Take Representative Ed Perlmutter, who responded to Gorsuch's nomination with a single awkward sentence: “While I have not had a chance to review Judge Neil Gorsuch’s record, I know Neil to be an honest and intelligent Coloradan. However, I will remain vigilant against any Supreme Court decision that turns back the clock on issues of liberty, equality and opportunity for all Americans.”
While introducing Gorsuch to a friendly audience assembled reality-show style at the White House, Trump nodded to the judge's Colorado roots.
Upon reaching the podium, Gorsuch — who may well be the most conservative resident of Boulder ever (sorry, Jon Caldara) — did so as well, noting that he'd worked on the staff of "Byron White, the last Coloradan to serve on the Supreme Court, and the only justice to lead the NFL in rushing." The line earned a well-deserved laugh.
He also made numerous references to family, but didn't specifically mention its best-known member: Anne Gorsuch (later Anne Gorsuch Burford), who served a controversial stint as head of the Environmental Protection Agency under President Reagan when Neil was a teenager. She died in 2004.
Anne has been mentioned plenty inWestword coverage over the years. In 1994, writer Ward Harkavy noted that she quit the EPA gig "amid a scandal" (over alleged mismanagement of the Superfund program). In 2004, Patricia Calhoun pointed out that Joe Coors helped push her and future husband Bob Burford, who oversaw the Bureau of Land Management for Reagan, to prominence. In 2011, Alan Prendergast credited her in part with "dismantling the EPA and declaring war on coyotes."
During an appearance on MSNBC last night, NPR's Nina Totenberg called Anne a "bomb-thrower."
Such a moniker hardly fits Neil, as Totenberg acknowledged. He was educated at Columbia, Harvard and Oxford — institutions that were mentioned frequently during post-nomination coverage, unlike the University of Colorado Boulder, where he taught law for years. Moreover, he's a measured, erudite speaker who's well known as one of the better writers on the bench. NBC correspondent Pete Williams acknowledges that some of Gorsuch's opinions are actually entertaining to read.
As for why Gorsuch was selected, much of the commentary on cable news last night centered on his previous association with another Supreme Court justice, Anthony Kennedy. If Gorsuch is confirmed, he won't change the balance of the court, since Scalia was extraordinarily conservative. But a replacement for eighty-year-old Kennedy certainly might. Kennedy was a Reagan appointee who turned out to be more ideologically flexible than anticipated (he's a frequent swing vote), and some observers feel that he might be more willing to step down and let Trump pick his successor now that The Donald has blessed a straight arrow like Gorsuch.
In regard to past Gorsuch cases, one of the most frequently mentioned last night involved the Little Sisters of the Poor, who, as we've reported, challenged Obamacare's contraception mandate. Gorsuch sided with the Sisters, but the matter stalled at the Supreme Court thanks to a four-four tie that almost certainly would have gone their way had Scalia still been alive.
Other commentators suggested that Gorsuch has a history of promoting police authority through his decisions, but that's not universally the case. In a recent post about a $1.6 million settlement paid to the Martinez family, whose members comprise a mariachi band, attorney David Lane credited Gorsuch with helping make the deal possible.
"Judge [Neil] Gorsuch, who's one of Trump's short-listers for the Supreme Court, was pounding on the City of Denver, talking about how reprehensible the actions of the police officers were," Lane told us last week. "So Denver saw the handwriting on the wall and decided — at Judge Gorsuch's suggestion, I might add — to engage in settlement negotiations. We decided to give them an incentive to settle, so we said, 'We'll settle for $1.6 million,' and that ended it."
In contrast, the fight over Gorsuch is just beginning. Republicans have enough votes (52) to confirm him as a Supreme, but Democrats could hold up the process with a filibuster. Current Senate rules require sixty votes to quash such a tactic, but Senator Mitch McConnell could simply choose to lower that threshold to a simple majority if push comes to shove — which it might. Dems remain angry that Republicans stonewalled President Barack Obama's nominee to replace Scalia, Merrick Garland. Now it could be payback time.
If so, the arguments against Gorsuch presented by NARAL are likely to become key talking points. Read them below.
NARAL's history of Judge Neil Gorsuch
• Current position: judge, Tenth Circuit Court of Appeals
• Appointed by anti-choice president George W. Bush; confirmed by voice vote
• He has contributed to anti-choice elected officials including Bill Frist, John McCain, and George W. Bush.
• He clerked for anti-choice Associate Justice Byron White.
• He also clerked for mixed-choice Associate Justice Anthony Kennedy.
• The conservative Federalist Society lists him as an “expert” on its website.
• In a case challenging the Utah governor’s executive action defunding Planned Parenthood Association of Utah, Gorsuch wrote an anti-choice dissent, in which he describes the motivation for the governor’s order as based on the activities alleged in videos released in the summer of 2015, and not because of the governor’s anti-choice position.
• When the Tenth Circuit decided against rehearing en banc a challenge to the ACA’s contraceptive-coverage policy (Little Sisters of the Poor v. Burwell), Gorsuch joined the dissenting opinion. Dissenters called the contraceptive-coverage policy a clear burden on the plaintiffs’ free exercise of religion and predicted that the policy would “not long survive.”
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• Gorsuch concurred with the Tenth Circuit’s anti-choice ruling in Hobby Lobby Stores, Inc. v. Sebelius. He wrote a concurring opinion that the ACA’s contraceptive-coverage policy required Hobby Lobby “to violate their religious faith by lending an impermissible degree of assistance to conduct their religion teaches to be gravely wrong.” He continues, “the mandate compels Hobby Lobby and Mardel to underwrite payments for drugs or devices that can have the effect of destroying a fertilized human egg.”
• He submitted an amicus brief on behalf of the American Hospital Association in a case about assisted suicide. He referenced Planned Parenthood v. Casey and wrote, in reference to public hospitals being required to provide elective abortions, “If the courts feel free to override the conscience of health care providers in that context, there is a danger they will do so here as well.”
• In a challenge to Oklahoma’s license-plate program, which allows for “Choose Life” license plates that fund anti-choice crisis pregnancy centers, the district court dismissed the case on procedural grounds. Gorsuch ruled that although some of the charges were rightfully dismissed, others could be heard on the merits so he remanded the case back to the district court for further proceedings. In his opinion, he wrote: “even if [the plaintiff] were to prevail and obtain the relief sought in its amended complaint, the State would remain free to promote adoption and ensure that none of its monies go to abortion-related activities or any other activities of which it disapproves."
• He wrote a novel, The Future of Assisted Suicide and Euthanasia, which argued against legalization of assisted suicide on the principle that human life is intrinsically valuable and that terminating human life is always wrong.