- Ian Millhisersenior fellow at the Center for American Progress Action Fund and the justice editor of ThinkProgress. His new article is titled “Who is Neil Gorsuch? What you need to know about Trump’s extraordinarily conservative nominee for the Supreme Court.” Millhiser is the author of the book Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.
- Nan Aronpresident of Alliance for Justice.
President Donald Trump has announced his pick for the Supreme Court to replace the late Justice Antonin Scalia: Judge Neil Gorsuch. He’s a member of the Federalist Society and is widely seen as conservative jurist. As a judge on the 10th Circuit, Neil Gorsuch ruled in favor of Hobby Lobby in the case deciding whether the company could refuse to provide birth control coverage to employees as required by Obamacare. Judge Gorsuch also has a long history of ruling against employees in cases involving federal race, sex, age, disability and political discrimination and retaliation claims. Senate Democrats have vowed to filibuster his nomination. For more, we speak with Ian Millhiser, senior fellow at the Center for American Progress Action Fund and justice editor of ThinkProgress. We also speak with Nan Aron, president of the Alliance for Justice.
AMY GOODMAN: In a prime-time address on Tuesday night, President Donald Trump announced his pick for the Supreme Court to replace the late Justice Antonin Scalia, who died nearly a year ago.
PRESIDENT DONALD TRUMP: Millions of voters said this was the single most important issue to them when they voted for me for president. I am a man of my word. I will do as I say, something that the American people have been asking for from Washington for a very, very long time. Today—thank you. Today, I am keeping another promise to the American people. By nominating Judge Neil Gorsuch of the United States Supreme Court to be of the United States Supreme Court.
AMY GOODMAN: Neil Gorsuch is a 49-year-old federal judge, member of the Federalist Society, widely seen as a conservative jurist. Trump was able to nominate Scalia’s replacement only because the Republican-led Senate refused to consider Obama’s nominee for the post. On March 16th last year, Obama nominated Garland, but Republican senators refused to hold confirmation hearings.
As a judge on the 10th Circuit, Neil Gorsuch ruled in favor of Hobby Lobby in the case deciding whether the company could refuse to provide birth control coverage to employees as required by Obamacare. Judge Gorsuch also has a long history of ruling against employees in cases involving federal race, sex, age, disability and political disco nation and retaliation claims. Senate Democrats have vowed to filibuster his nomination. During remarks last night, Judge Gorsuch described Antonin Scalia as “a lion of the law.”
JUDGE NEIL GORSUCH: For the last decade, I’ve worked as a federal judge in a court that spans six Western states, serving about 20 percent of the continental United States and about 18 million people. The men and women I’ve worked with at every level in our circuit are an inspiration to me. I’ve watched them fearlessly tending to the rule of law, enforcing the promises of our Constitution and living out daily their judicial oaths to administer justice equally to rich and poor alike, following the law as they find it and without respect to their personal political beliefs. I think of them tonight.
Of course, the Supreme Court’s work is vital not just to a region of the country, but to the whole, vital to the protection of the people’s liberties under law and to the continuity of our Constitution, the greatest charter of human liberty the world has ever known. The towering judges that have served in this particular seat of the Supreme Court, including Antonin Scalia and Robert Jackson, are much in my mind at this moment. Justice Scalia was a lion of the law. Agree or disagree with him, all of his colleagues on the bench cherished his wisdom and his humor. And like them, I miss him.
AMY GOODMAN: To talk more about Judge Gorsuch, we are going to go to Washington, D.C., where we’re joined by two guests. Ian Millhiser is senior fellow at the Center for American Progress Action Fund, the editor of ThinkProgress Justice. His new article is titled “Who is Neil Gorsuch?” He’s also author of the book Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted. We are also joined by Nan Aron, who is president of Alliance for Justice.
Ian Millhiser, let’s begin with you. Your overall response to President Trump’s choice of Judge Gorsuch to be the next Supreme Court justice?
IAN MILLHISER: Yeah, I mean, this is a terrible pick. This is someone who will probably be to Scalia’s right. Scalia was very bad on choice. I think that Gorsuch will match that. Scalia was bad on issues like birth control. Gorsuch will match that. But in addition to that, what makes Gorsuch very unusual is that he wants to dismantle the deference that courts have typically played to federal agencies. It’s a very technical issue, but it’s also very important. It goes to whether or not, when the people elect a Democratic president, that Democratic president is going to be able to protect the environment, to protect workers, to make wages go up, or whether they’re going to be at the mercy of a Republican-controlled court. So, his primary agenda is to shift power toward the judiciary at the very moment that the Republican Party is consolidating its control over the judiciary. And I think that that leads us to some very dangerous places.
AMY GOODMAN: He has been hailed as a man who is deeply erudite, a great writer, a classmate of President Obama at Harvard Law School—this, across the spectrum. Your thoughts?
IAN MILLHISER: Yeah, I mean, he’s a very smart guy. And, I mean, to some extent, that’s what makes him dangerous. You know, this is someone who is going to, with great precision, with great intelligence, look for ways to implement a very conservative agenda. And that person, frankly, scares me more than someone who’s dumb. I mean, this guy is extraordinarily competent, extraordinarily talented, and he’s going to put all of considerable brainpower towards implementing a very right-wing agenda.
AMY GOODMAN: Neil Gorsuch wrote in an essay in 2005 for the National Review, in which he said, quote, “American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education.” He continued, “This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary.” Ian Millhiser, your response?
IAN MILLHISER: I would feel better if the views that he expressed in that article matched what his record on the bench, because at least if he’s saying that the courts should be less involved generally, that means that when liberals want something, they don’t get it, but when conservatives want something, they don’t get it, either. What I’ve seen from Gorsuch is something else. What I’ve seen from Neil Gorsuch is that when liberals want something, regardless of whether there’s precedent in their favor, he’s looking for ways to dismantle those precedents, and when conservatives want something, he’s going out of their way to give them their wish list. And that’s even scarier than someone who just wants to dismantle the court’s role in society.
AMY GOODMAN: Reproductive rights, Ian?
IAN MILLHISER: Well, as you said, he voted the wrong way in Hobby Lobby to say that a woman’s boss has a degree of control over their access to birth control. He also went out of his way to try to defund Planned Parenthood in a very odd case in which he used the court’s rules in a way that they’re really not supposed to be used. So I don’t think there’s any question that not only is he going to vote the way that he voted in Hobby Lobby over and over again, but that he is anti-choice and will vote to dismantle Roe.
AMY GOODMAN: What do you mean on the Planned Parenthood front? Can you explain what that case was?
IAN MILLHISER: Sure. So it was actually a fairly minor case. There was a question of whether or not Planned Parenthood’s funds could be cut off by the Utah governor. And the reason I call it a minor case is because it was really just a case about the governor’s motivation. It was a totally fact-based inquiry. There was no grand legal question in play. And Gorsuch invoked a process that’s used to make the whole court hear a case. It’s typically only invoked—it’s only invoked very rarely. And when it is, it’s because there is some sort of grand legal principle in place. So the fact that he would try to do this in a case that legally was very small, even though obviously politically it matters a great deal what happens to Planned Parenthood, suggests to me that he is willing to use every tool at his disposal, and he’s willing to break with traditions and break with ordinary process, in order to push an agenda that’s going to restrict access to reproductive rights.
AMY GOODMAN: Neil Gorsuch has long opposed assisted suicide, which his home state of Colorado legalized last year. He wrote a 2006 book called The Future of Assisted Suicide and Euthanasia. In it, he outlines his argument for retaining current laws banning assisted suicide and euthanasia, saying, quote, “All human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong.” What is the significance of this, Ian Millhiser, both on assisted suicide and what it means for reproductive rights?
IAN MILLHISER: Right. I mean, it’s significant because it tells you immediately what he’ll do in an assisted suicide case. But obviously the rhetoric that he uses there is the rhetoric that abortion opponents are using. You know, the anti-choice rhetoric is to present the fetus as a human life and say that—exactly what Neil Gorsuch said about human life in his book. So, when you look at his full record, his vote in Hobby Lobby, his vote in the Planned Parenthood case, his adoption of the rhetoric of people who call themselves pro-life, I think it’s very, very clear what he’s going to do when he has an abortion case in front of him.
AMY GOODMAN: We’re going to break and then come back to this discussion with Ian Millhiser, senior fellow at the Center for American Progress Action Fund and editor of ThinkProgress Justice, and Nan Aron, president of Alliance for Justice. Stay with us.
AMY GOODMAN: “Dead Man Walking,” David Bowie, here on Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman. We are continuing to look at Judge Neil Gorsuch, President Trump’s nominee to the Supreme Court. We’re joined by Nan Aron, president of Alliance for Justice. Still with us, Ian Millhiser, senior fellow at the Center for American Progress Action Fund, editor of ThinkProgress Justice.
Nan Aron, when you saw the pick announced in a kind of reality TV way, no one knew who it was going to be, but at 8:00 Eastern Standard Time, President [Trump] announced that Neil Gorsuch was his choice, and he came out with his wife, Gorsuch did. Talk about your response and what you are most concerned about right now.
NAN ARON: Well, we were—we expected either Neil Gorsuch or Tom Hardiman. And probably Neil Gorsuch, by the afternoon, was considered the front-runner. I would say we were obviously very disappointed, but not surprised.
The events of the past several weeks have added new urgency to this discussion and to the debate that will ensue over the Supreme Court. We now know we have a president, Donald Trump, Steve Bannon, Mike Pence, who would love to dismantle the social, economic, political progress made in this country for over a hundred years. And what is so critically important at this particular moment in time is to have courts—and, in particular, a Supreme Court—that can operate as an independent check on the president’s powers, excesses and even impulses. So I’d say this discussion, this focus on the court, is critically important, because, after all, while Donald Trump will be in office four years, eight years, Supreme Court justices are on the court for life. And so, this inquiry that will be taken by the Senate is really an important one, is an awesome one.
But at the end of the day, we do know Neil Gorsuch. We know his record. And, yes, he’s very smart. Yes, he’s very collegial. But that’s not the end of the inquiry when you consider a Supreme Court justice. What you need to look at is the record, as Ian has done and we have done. And it shows an individual who will limit the ability of government to protect Americans’ air, water, medicines, food, weaken workers’ rights, civil rights, limit abortion, do away with abortion. He’s even criticized the courts for advancing LGBTQ rights. So, this is a man who is really out of sync with America at the moment. He’s not out of sync with Heritage Action. He’s not out of sync with the Federalist Society. He’s not out of sync with Wall—
AMY GOODMAN: Explain what the Federalist Society is.
NAN ARON: The Federalist Society is an organization, principally of law students, law teachers, lawyers, funded in part by the Koch brothers, who espouse a very limited role for the courts. Their view is the courts can’t protect, can’t safeguard, won’t allow our agencies to ensure that we’ve got protections, which really places people’s lives in peril. It is a—considered a right-wing organization. And in fact, the Trump administration outsourced the selection of its judges and Neil Gorsuch to the Federalist Society and Heritage Action. A very sad, sad phenomenon at the moment.
We also know that this president, as stated several times during the campaign, was looking for an individual who would both expand gun rights and overturn Roe v. Wade. So we know that the president is very assured that Neil Gorsuch will complement, will carry out, will implement his agenda on those two things. But there’s even more to be worried about, and that is really the ability of our government and its agencies to provide protection for all Americans.
AMY GOODMAN: Ian Millhiser, Judge Gorsuch was a clerk for Anthony Kennedy, another Supreme Court justice. There was discussion that because Anthony Kennedy would feel so comfortable with Judge Gorsuch at his side—
IAN MILLHISER: Right.
AMY GOODMAN: —that he might be more willing to retire, which would mean President Trump chooses another Supreme Court justice. Can you talk about this?
IAN MILLHISER: Yeah, I mean, lord, I hope not. I mean, here’s the thing. Anthony Kennedy is conservative, but he’s much more moderate than Neil Gorsuch. And Anthony Kennedy does have a libertarian streak. You know, he’s supportive of some restrictions on police. He, you know, sometimes votes with the liberals in criminal justice cases. I think that he is cautious about executive power, and he might be particularly cautious about this executive’s power. And he’s also good on gay rights. So, when you look at Anthony Kennedy’s record, a lot of what he cares about is going to be lost if he gives his seat to Donald Trump. He’s not going to be giving it to Neil Gorsuch. He’s going to be giving it to whoever Donald Trump picks. And so, you know, I’m not a mind reader. Only Anthony Kennedy can know what Anthony Kennedy is thinking. But I hope that he realizes that he is the only thing standing between Donald Trump right now and Trump being able to do more or less whatever he wants. And if he wants to continue to be a check on this president, he needs to not give the president his seat on the Supreme Court.