PIVOT’s Position on the Supreme Court Nomination of Neil Gorsuch

March 31, 2017

The death of Justice Antonin Scalia in February 2016 left a vacant seat on the Supreme Court. President Barack Obama nominated Judge Merrick Garland in March 2016, but the Republican-controlled Senate did not consider his nomination. President Donald Trump nominated Judge Neil Gorsuch in March 2017.

Who is Neil Gorsuch?
Neil Gorsuch, age 49, has been serving on the United States Court of Appeals for the Tenth Circuit since 2006. He graduated from Columbia, Harvard and Oxford and clerked for two Supreme Court justices (Byron White and Anthony Kennedy). Analyses of his ruling record indicate 3,000 rulings that highlight his conservative leanings. PIVOT analyzed his nomination and ruling record and summarized why we oppose his confirmation.

Why does PIVOT oppose Gorsuch’s nomination?

  • Legitimacy of the nomination: Republican Senators intentionally obstructed the nomination of Judge Garland by not holding a hearing on his nomination for 293 days, putting in question the fairness of the nomination of Gorsuch. Furthermore, PIVOT believes that, until the FBI completes its investigation of the Trump Administration and its ties with Russia during the election, President Trump should not be allowed to make a lifetime appointment for a Supreme Court Justice.
  • Gorsuch record: Judge Gorsuch’s ruling record has shown a strong bias in favor of religious groups, corporations, and against women, immigrants, and special-needs children. Below, we highlight his position in some key cases before the 10th Circuit Court that reflect his biases.     

    • Workers’ rights (TransAm Trucking v. Maddin): Alphonse Maddin, a TransAm truck driver, waited for three hours in freezing conditions for his trailer to be fixed and finally drove off in his cab out of concerns for his safety. TransAm fired Maddin for abandoning his trailer. The Occupational Safety and Health Administration agreed with Maddin that he was wrongfully terminated despite a reasonable fear. Judge Gorsuch ruled against Maddin in support of TransAm in a decision that places a higher value on the company’s trailer than the employee’s death or serious harm from freezing conditions.  It is noted that seven trial and appellate judges heard Maddin’s case.  Six sided with the frozen trucker.  Gorsuch cast the solitary vote in favor of the trucker’s employer.

    • Reproductive rights (Hobby Lobby v. Sebelius; Little Sisters of the Poor v. Burwell): In Hobby Lobby, Gorsuch supported the decision that some private corporations are ‘people’ under federal law, have religious freedom, and can deny basic healthcare coverage if it violates their religious belief. This allows employers to deny access to basic health care such as contraception and prioritizes the rights of corporations over the rights of individual employees. In Burwell, Gorsuch again sided with opponents of the Affordable Care Act’s mandate requiring insurers to cover any FDA-approved contraceptive methods. Gorsuch called the contraception mandate “a clear burden” that would “not long survive.”   

    • Federal regulators’ power to redress corporate misconduct (Gutierrez-Brizuela v. Lynch): Gorsuch is even to the right of Justice Scalia on the “Chevron deference doctrine.” The doctrine was recognized by the U.S. Supreme Court in a 1984 case involving Chevron which held that courts should defer to regulatory agencies’ reasonable interpretation of laws that Congress has charged them with enforcing. For over 30 years, courts have repeatedly cited this doctrine to allow federal agencies to pursue corporate violations of health, safety, labor, environmental, and other crucial rules. In Gutierez-Brizuela, Gorsuch wrote that the Chevron deference doctrine should essentially be overruled.  Gorsuch’s opposition to this long-established doctrine is extremely dangerous because if he were to have his way, it would seriously hamper the ability of federal agencies to rein in illegal corporate behaviour.        

    • Racial/ethnic discrimination (Zamora v. Elite Logistics, Inc.): Ramon Zamora, a naturalized citizen of the U.S., was suspended from work because of lack of documentation of his legal status. When he brought in documentation and asked for an apology, he was fired. Zamora sued, claiming discrimination based on his race and national origin.  Gorsuch sided with the company.

    • Police brutality against immigrants (Porro v. Barnes): Alfredo Yero Porro, a federal immigration detainee, was tased at least three times while he was restrained in a chair in an Oklahoma jail, despite a federal policy that prohibits the use of tasers on immigration detainees. Judge Gorsuch ruled in favor of the prison guard supervisors and against the immigrant who was abused.

    • Anti-immigrant (Garcia-Carbajal v. Holder): Judge Gorsuch often ruled against immigrants by upholding decisions of the Board of Immigration Appeals. In one significant case, Garcia-Carbajal v. Holder, Alonso Garcia-Carbajal, citing that his deportation would cause serious hardship for his U.S. citizen family members, challenged his deportation with the Department of Homeland Security. Gorsuch ruled to dismiss the case.

    • Hands-off ruling concerning special-needs students (Thompson R2-J School District v. Luke P.): To the parents of Luke P., an autistic student, the Individualized Education Program his school designed for him had failed him because he was unable to transfer or generalize skills learned at school toward basic self-help and self-sufficiency. The family arranged for private schooling for Luke and sought reimbursement. Gorsuch ruled against the family and stated that as long as the student had any progress in his school environment, his school had sufficiently complied with the requirement, regardless of the best educational outcome to such students. The Supreme Court unanimously rejected Gorsuch’s reasoning, demonstrating another poor interpretation of the law.

  • Stance on abortion rights: Although Judge Gorsuch has never ruled directly on Roe v. Wade, conservatives believe that he would be a reliable vote to overturn that landmark opinion. In Gorsuch’s book on assisted suicide, he wrote that “the intentional taking of human life by private persons is always wrong.”  In the book, Gorsuch also cited the dissent by his former boss, Justice Byron White, in Roe v. Wade as “arguing that the right to terminate a pregnancy differs from the right to use contraceptives because the former involves the death of a person while the latter does not.” Moreover, as a self-proclaimed originalist who thrives to follow the original intent of the authors of the Constitution, Gorsuch will likely rule that the framers never intended to protect a right to abortion. Finally, it should be reminded that Trump has consistently promised to appoint Justices “in the mold of Justice Scalia” who would overturn Roe v. Wade.
  • Stance against environment litigations: The Trump Administration has plans to relax or abolish most environmental policies. This would force the fight against environmental violation in the Courts. However, Gorsuch has objected against using court resources for such purposes, stating that environment litigations “swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.” His aversion to environmental litigations may limit the number of cases brought into the Courts.

There are multiple reasons for our grave concerns of Judge Gorsuch’s nomination to the Supreme Court -- the legitimacy of his nomination, his ruling record that favors corporations, religious groups, and government and against workers, women, immigrants, special needs children, his writing and judicial philosophy that would lead to the overturning of the landmark Roe v. Wade opinion, and his unwillingness to allow environmental litigations in the Courts. As such, PIVOT opposes his nomination to the Supreme Court on the grounds that his lifetime appointment would be at the disadvantage of the rights of workers, women, immigrants, and disabled individuals.