They could have been blocked by filibusters, and it was a huge mistake that Democrats did not do so.įilibustering Gorsuch would require a commitment that Democrats will continue to filibuster all Trump nominees until a moderate is selected. In deciding whether to filibuster, Democrats should remember that there were 48 votes against Clarence Thomas and 42 votes against Samuel Alito. Democrats should not allow another justice on the Court with these views. Nor did Justice Antonin Scalia support them. None of these rights were intended by the framers. Under originalism, no longer would there be constitutional protection for privacy, including reproductive freedom, or a right to marriage equality for gays and lesbians, and or even protection of women from discrimination under equal protection. Robert Bork was denied confirmation by the Senate in 1987 precisely because of his originalist views. He has espoused an originalist philosophy, saying that a constitutional provision means the same thing today as when it was adopted. As a judge on the United States Court of Appeals for the 10th Circuit, he was a consistent vote against reproductive freedom, against plaintiffs in civil rights cases, against criminal defendants, against a separation of church and state. There is no doubt that Neil Gorsuch will be a reliable conservative vote as a Supreme Court justice. However, appointing Neil Gorsuch-whose purchase on Tony Kennedy was forged two decades ago-brings us one, and maybe two, votes closer.Įrwin Chemerinsky is dean of the School of Law at University of California, Irvine. We are a long way from restoring the lost Constitution. While Scalia regrettably alienated the moderate members of the court, the collegial Coloradan has the opportunity to cast textualism and originalism in a softer, friendlier light.
As a former law clerk to Kennedy, Gorsuch has the unique opportunity to try to persuade his former boss, and maybe-just maybe-nudge him to the right. But more importantly, he has a cachet that, alas, the brash New Yorker lacked. As a committed originalist, sound jurist and brilliant writer, Gorsuch will serve as a worthy intellectual heir to Justice Antonin Scalia. President Trump’s decision to nominate Judge Neil Gorsuch was inspired. Kagan’s addition largely proved Tribe’s prediction correct since her appointment, the swing justice has “consistently moved in the liberal direction,” in the words of one legal scholar. At the time, Tribe carped that Justices Ruth Bader Ginsburg and Stephen Breyer have not had “much of a purchase on Tony Kennedy’s mind.” Kagan, unlike the eventual nominee, Sonia Sotomayor, Tribe explained, would be able to prevent Kennedy, the longtime swing voter, “from drifting in a direction that is both formalistic and right-leaning of matters of equal protection and personal liberty.” Obama did not listen to Tribe the first time, but he did select Kagan to the high court a year later, in 2010. In 2009, Harvard Law professor Larry Tribe urged President Barack Obama to nominate then-Solicitor General Elena Kagan to replace Justice David Souter. Josh Blackman is a constitutional law professor at the South Texas College of Law in Houston.
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