Commentary, Trump Administration

What you need to know about rumored Trump Supreme Court pick

Neil Gorsuch

Neil Gorsuch

There are unconfirmed reports this afternoon that Donald Trump will nominate federal appeals court judge Neil Gorsuch to the Supreme Court tonight at 8:00 p.m. As was argued in this morning’s edition of the Weekly Briefing, there are many good reasons why senators ought to reject any nominee at this point from our lawless and dishonest president (many of which ought also to be reason enough for any self-respecting judge to decline any connection to Trump).

Assuming, however, that Gorsuch accepts the nomination that Republicans hope to steal from President Obama, here are some basic things you should know about him, courtesy of Elliot Mincberg of People for the American Way:

“Although Gorsuch’s record prior to becoming a judge was not nearly as problematic as [William] Pryor’s, his record as a judge and a lawyer make clear his extreme views. As a judge, he has consistently ruled against workers and in favor of big corporations. For example, he argued in dissent that the court should overturn a Department of Labor fine against a company whose failure to train a worker caused his death, and wrote an opinion holding that federal law did not even protect the in-house counsel of a state fire marshal from sex discrimination. He has harmed women’s reproductive rights through joining opinions that both for-profit companies and non-profits can refuse to provide contraceptive coverage to women under the ACA. He also argued in dissent that the Governor of Utah should be able to defund Planned Parenthood there as a result of false videos purporting to show other Planned Parenthood affiliates negotiating the sale of fetal tissue. As an advocate, he has tried to restrict or eliminate one of the most effective legal tools against corporate securities fraud, class actions against corporations. And he has gone even further to the right than Justice Scalia in arguing for the elimination of the so-called Chevron doctrine, under which courts defer to administrative agency interpretations of ambiguous statutes, which has been extremely important on environmental, job safety, and other issues.”

And this is from Ian Millhiser of the Center or American Progress:

“Like many names on Trump’s list, Judge Neil Gorsuch has strong social conservative credentials. He authored a book arguing against legalization of assisted suicide and euthanasia, and he sided with religious employers seeking to limit their employees’ rights to birth control coverage in the lower court decision in Hobby Lobby.

Gorsuch also emerged as one of the judiciary’s leading spokespeople for an effort to hobble the Obama administration’s ability to promulgate progressive labor and environmental regulations. In the waning years of Obama’s presidency, Federalist Society events grew increasingly fixated on limiting federal agencies’ authority to take regulatory action of any kind. Often, they focused their ire on the Supreme Court’s venerable Chevron doctrine, which holds that courts should generally defer to agencies when the law authorizing a regulation is ambiguous, and typically should only strike down such regulation if the law clearly does not permit the agency’s action to move forward.

Gorsuch may be the judiciary’s most vocal proponent of the Federalist Society’s crusade. In a 2016 opinion, he claimed that Chevron is “more than a little difficult to square with the Constitution of the framers’ design.”

The practical impact of a court decision overruling Chevron would be a significant shift in power from a branch of government that is elected, the executive, to a branch that is not, the judiciary. Currently, when the law is uncertain, courts defer to executive agencies. Under Gorsuch’s preferred rule, courts would instead decide for themselves which regulations will stand and which will go?—?and they will do so without much statutory guidance since Chevron is only an issue when the law is unclear.

In such a world, it would matter even more which party controls the Supreme Court. Rather than deferring to rules pushed by a Democratic administration, a Republican Court would be free to strike these rules down. Meanwhile, the same Court would be free to uphold every single regulation pushed by a republican administration.”

Stay tuned, we will have full coverage tonight and tomorrow.

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