When Judge Neil Gorsuch raises his right hand in front of the Senate Judiciary Committee, he has some important questions to answer.
As a Supreme Court justice with a lifetime appointment, he needs to provide some assurance that he would be a voice for all people, not just the privileged and powerful. Would he tilt the playing field against consumers and in favor of large corporations? Would he safeguard civil rights or roll them back? Does he believe it should be easier or harder to vote in a democracy?
Since his nomination, Judge Gorsuch has been reticent about addressing these critical questions. But he has left a paper trail, a record as a judge on the Tenth Circuit Court of Appeals that provides some insight into his views.
He appears to channel Mitt Romney in his belief that corporations are “persons” – and therefore may deny workers health care options based on the corporation owner’s religious beliefs. That was his view in Hobby Lobby Stores, Inc. v. Sebelius in 2013, and favoritism toward business interests seems to guide his judicial philosophy.
The Associated Press described Gorsuch’s approach to workers’ rights cases as “coldly pragmatic, and … usually in the employer’s favor.” In one dissenting opinion last year, Gorsuch concluded that a trucking company was justified in firing a driver, who, fearing for his safety with his body numbing in subzero temperatures, abandoned his cargo after waiting for roadside assistance for several hours.
In several cases, Judge Gorsuch has put a thumb on the scale in favor of powerful institutions and against vulnerable individuals seeking fair treatment from the system. For example, he ruled that a boy with autism did not have a legal right to educational resources allowing him to apply at home the intellectual and social skills he learned in school.
And he denied a cancer-stricken Kansas State University professor’s request for extended sick leave.
Gorsuch has opposed class-action lawsuits. He has argued that it should be harder for consumers to sue Wall Street firms for fraud and other wrongdoing. He supports legal theories that could endanger important protections for clean air and safe food.
And by embracing the theory that political contributions are an expression of First Amendment rights, he would clear the way for billionaires to have even more influence on our elections than they currently do.
We are open to learning more from Judge Gorsuch about his views on these issues. That’s what the hearings are for, and we hope he will be forthright. Given what we currently know, it’s not clear that he can be trusted to defend the interests of working families, people who find themselves on the wrong end of an unbalanced economy, the very “forgotten man and woman” whom President Trump claims to speak for.
Surely it would be inconsistent for a president who has railed against Wall Street and global elites to appoint a justice who would enshrine the principle that corporations are people.
Supreme Court justices have the power to make decisions affecting the lives of millions of people for generations. So this nomination deserves careful vetting and review. Particularly now, with our country politically divided, we need a justice for all Americans – an independent voice and not an ideological warrior, a consensus builder and not a controversy seeker.
If that shoe doesn’t fit Judge Gorsuch, then the country would be best served leaving this seat on the Court vacant, just as it has been for the last 13 months.
Nothing in the Constitution says that the Supreme Court must have nine justices.
If the current nominee cannot be fair to all Americans – if his approach to the job would be one of bias and not balance – then maybe eight is enough.
Lee Saunders is the president of the American Federation of State, County and Municipal Employees, AFL-CIO, which represents 1.6 million members. This post also appeared as a column in today’s edition of The Hill, a newspaper covering Capitol Hill. To access the column, go here.