Proponents and opponents voiced their opinions of U.S. Supreme Court nominee Neil Gorsuch on the final day of his hearing – the same day the Senate’s Democratic leader announced he would try to block a confirmation vote.
After three days of appearances before the Senate Judiciary Committee, Gorsuch was followed by witnesses who urged panel members either to vote for or against his confirmation. Among the witnesses were a religious freedom expert who endorsed Gorsuch’s confirmation and abortion and gay rights advocates who urged his rejection.
Sen. Charles Schumer, D-N.Y., the minority leader, took to the floor of the Senate March 23 to say he would vote against Gorsuch and lead a filibuster effort to prevent the judge’s confirmation.
“My vote will be ‘no,’ and I urge my colleagues to do the same,” Schumer told senators. “He will have to earn 60 votes for confirmation.
“I say if this nominee cannot earn 60 votes … the answer isn’t to change the rules. It’s to change the nominee.”
The Judiciary Committee is expected to vote April 3 to send Gorsuch’s nomination to the full Senate, but it remains to be seen whether the 52 Republican senators can persuade at least eight Democrats to join in overcoming a filibuster. Sixty votes will be required to halt a filibuster and bring Gorsuch’s nomination to the floor for a confirmation vote. If the GOP falls short, it can still take the controversial step of holding a vote to change the rules and confirm Gorsuch by a simple majority.
Sen. James Lankford, R-Okla., responded by saying Schumer and the Democrats “have no reason to try to mount a filibuster.”
“Judge Gorsuch has an impressive record of interpreting the law without trying to legislate from the bench,” said Lankford, a Southern Baptist, in a written statement. “Adherence to the rule of law, refusal to legislate from the bench and dedication to the separation of powers are not extreme ideas. However, filibustering a Supreme Court nomination is.”
Schumer’s filibuster pledge came after Gorsuch patiently explained his judicial philosophy and defended his record during two full days of answering questions from 20 committee members. Gorsuch espouses originalism and textualism – interpreting the Constitution based on its original meaning and laws based on their text, respectively.
Southern Baptist legal and policy specialist Travis Wussow described Gorsuch’s hearings as “nothing short of remarkable.”
“We were encouraged by Judge Gorsuch’s responses and feel confident based on those responses and his record that he will be a powerful voice advancing a conservative jurisprudence on the Supreme Court,” Wussow, general counsel and vice president for public policy of the Ethics & Religious Liberty Commission (ERLC), said in written comments for Baptist Press. “We now look for the Senate to do its job and confirm Judge Gorsuch to the Court, using the full extent of its constitutional authority if necessary.”
During the March 23 witness testimonies, Hannah Smith – senior counsel at Becket, a leading defender of free exercise for all religious adherents – said she reviewed all 40 religious liberty opinions involving Gorsuch, who has served on the 10th Circuit Court of Appeals in Denver more than 10 years.
“My assessment is that Judge Gorsuch, as an associate justice of the Supreme Court, would be a jurist committed to protecting this vital freedom,” Smith told the committee. “None of his religious liberty opinions has ever been reversed by the Supreme Court.”
Gorsuch “has demonstrated repeatedly that he applies the law fairly to protect religious minorities and incarcerated persons, some of the most politically powerless in our society,” she said, citing his rulings in support of Native American and Muslim prisoners.
His record consistently shows Gorsuch rules “without regard to a particular ideological outcome,” Smith said. “His jurisprudence demonstrates an even-handed application of the principle that religious liberty is fundamental to freedom and to human dignity and that protecting the religious rights of others, even the rights of those with whom we may disagree, ultimately leads to greater protections for all of our rights.”
A gay rights legal specialist, however, told the senators Gorsuch “cannot be given a lifetime appointment to the Supreme Court.”
Sarah Warbelow, legal director of the Human Rights Campaign, said Gorsuch “has employed a dangerous brand of originalism that ignores the essential context and values of each case and the lives that they touch. His record and statements place him squarely in the mold of Justice Antonin Scalia, who consistently demeaned and denied the dignity of LGBTQ [lesbian, gay, bisexual, transgender, queer] people from the bench.”
Scalia – whose death in January 2016 resulted in the vacancy that Gorsuch will fill if confirmed – was well-known as a proponent of originalism.
Warbelow criticized Gorsuch for his ruling against a man who transitioned into being a woman and was terminated from his job because he refused to use the men’s restroom.
“We need a justice who recognizes our basic equality and shared humanity,” Warbelow said. “Judge Gorsuch has never met this bar, and that’s why the Human Rights Campaign opposes his nomination to the Supreme Court.”
Though Gorsuch has yet to rule on abortion, Amy Hagstrom Miller of Whole Woman’s Health, told the senators the judge’s “positions raise concerns about his ability to be open-minded, fair and guided by the Constitution, and not his own ideology or personal beliefs.”
Miller – founder and chief executive officer of the group of clinics that performs abortions – said, “We need justices on the bench who oppose unnecessary obstacles to our constitutional rights. Neil Gorsuch is not that judge.”
Whole Woman’s Health, which last year won an important Supreme Court case involving regulations on abortion clinics and doctors in Texas, has joined 54 other organizations in a letter opposing Gorsuch, Miller said.
The ERLC sponsored a letter Feb. 1 in which more than 50 Southern Baptist and other evangelical leaders called for confirmation of Gorsuch. The signers said they believe Gorsuch’s judicial philosophy meets the thresholds of their “core social principles.” Those precepts include in the Supreme Court’s purview “the protection of the unborn, the strengthening of religious liberty, and a dedication to human flourishing – which we believe can only be accomplished by a biblical definition of marriage and family,” they said.
(EDITOR’S NOTE – Tom Strode is the Washington bureau chief for Baptist Press, news service of the Southern Baptist Convention.)