On Monday, Neil Gorsuch was appointed to the US Supreme Court by President Donald Trump. There was an attempted senate ‘filibuster’ of the appointment. Once a Supreme Court justice is nominated by a president, they must get at least 60 senators to support their confirmation. A filibuster occurs when a minority of lawmakers, in this case Democratic senators in a house controlled by Republicans, use the laws of debate to prevent the house voting on something that has majority support. Democratic senator Chuck Schumer of New York led the Democratic senators in a filibuster to prevent Gorsuch’s approval. The filibuster was thought to be a response to the Republican refusal to appoint Merrick Garland, a liberal judge, when he was nominated by President Obama last year.
The Republicans responded to the filibuster by changing the rules so that Gorsuch could be nominated with just 51 votes. This is known as the ‘nuclear option’, because it upsets the impression of the senate as a ‘collegiate’ house in contrast with the more combative House of Representatives. With the nuclear option successful, Gorsuch was sworn in on Monday.
All commentators agree that Gorsuch’s judicial credentials are impeccable. He has sat for many years on Appellate Court benches and he clerked for a Supreme Court justice when he was young. But he is a committed conservative, meaning many liberals fear his influence on laws relating to abortion, gun control and other issues. Senator Bernie Sanders says Gorsuch’s discomfort with abortion is motored by ‘hostility to women’s rights’. Others have described him as so conservative as to be ‘outside of the judicial mainstream’.
Gorsuch is also said to favour big business over workers’ rights. This view springs from a case in 2016, when Gorsuch served as a judge in the Tenth Circuit Court of Appeals. The case involved a company called TransAm Trucking. A driver for the company got stuck by the side of the road in icy conditions. After calling his emergency dispatcher a few times, the trucker – fearing he would freeze – abandoned his trailer and drove his truck to the nearest gas station. His employment was terminated. Gorsuch found that the termination was legal. He said it was not the job of the court to answer whether TransAm’s decision was ‘wise or kind’ – it was only to decide if it was legal. He said there is no law giving employees the ‘right to operate their vehicles in ways their employers forbid… [and] it isn’t our job to write one’. Despite Gorsuch’s view, the court found in favour of the trucker.
Gorsuch’s decision in that case is an example of his avowed judicial philosophy, which is known as ‘texturalism’. Texturalist judges try to restrict any interpretation of the law that would strain the meaning of the words of the law. They do not like to interpret laws broadly to allow for a particular result, even if that result appears more just. Gorsuch is seen as a like-for-like replacement for Justice Antonin Scalia, who died last year aged 79. Scalia promoted a similar judicial philosophy: originalism. Scalia thought judges should interpret the wording of the US Constitution by considering what the Founding Fathers themselves meant by these words. Originalism and texturalism are seen by many on the left as being a means of justifying conservative decision-making, particularly around issues like abortion and gun control.