While much has been and will be said about Justice Neil Gorsuch’s deeply conservative jurisprudence on this week’s anniversary of his confirmation to the Supreme Court, the biggest impact of his elevation to the court is not actually seen in his early judicial leanings. Rather, it’s in the already hugely consequential legacy of his nomination fight.
With the success of the Gorsuch nomination, the White House recognized that reshaping the federal judiciary could become not just President Donald Trump’s signature achievement but a path to future legal victories. The Senate GOP’s decision to abolish the filibuster to push Gorsuch through also set the stage for the further obliteration of the judicial confirmation process. Finally, exercising that “nuclear option” removed a final incentive for bipartisanship in Supreme Court nominations, a development that promises to produce even more extreme justices, further damaging the law and the legitimacy of the court. Ultimately, the legacy of the Gorsuch fight is much deeper than anything Justice Gorsuch has yet to opine and may ultimately prove to be greater than his actual judicial legacy.
Early in his presidency, Trump faced a series of high-profile court losses over unconstitutional executive actions, such as his initial Muslim ban, leaving the chief executive to console himself with Twitter tantrums against “so-called judges” and other perceived judicial adversaries. Gorsuch’s confirmation, however, handed Trump his first accomplishment as president and made real the possibility of packing the courts with judges who share his anti–civil rights agenda and his disdain for core constitutional principles and precedents. Trump has done this with a torrent of judicial nominations: 69 in his first year in office, more than double Barack Obama’s 34 at a similar point in his presidency. With judges who share this administration’s views on the bench, there will be many fewer checks against its continued assaults on constitutional rights and civil liberties. The Republican-led Senate has voted to confirm these nominees through at record speed.
The confirmation of Gorsuch heralded a year of lower court nominees created in his image—predominantly white and male, relatively young, and often hostile to consumer, worker, health, and environmental protections, as well as gender, racial, and LGBTQ equality. A disturbing number of Trump’s judicial nominees are actually lawyers who have built their careers denigrating LGBTQ people and their families. Analysis by Lambda Legal (where I work as a legal fellow) at the end of last year found that nearly 1 in 3 (16 out of 59) of Trump’s judicial nominees to that point had anti-LGBTQ records.
Of those nominees, some—like Jeff Mateer, who described transgender children as “Satan’s plan”—were withdrawn following public outcry and civil rights opposition. Others—like Kyle Duncan, who claims that transgender people are “delusional”—are equally condemned yet remain pending for a vote on the Senate floor. People now confirmed to lifetime judgeships include Gregory Katsas, a lawyer in Trump’s White House who helped morph the transgender military ban from tweet to policy, and John Kenneth Bush, a lawyer and an anonymous blogger who compared abortion to slavery and posted extensive rants calling Nancy Pelosi “Mama Pelosi” and Hillary Clinton “nanny Secretary of State.”
The Senate has confirmed 29 of Trump’s judicial nominees, including 14 circuit court nominees. At this stage in their presidencies, Obama had six confirmed circuit court judges, George W. Bush had seven, and Bill Clinton had three. This feat is made possible by the breakdown in the judicial confirmation process that took hold in the Obama years and gained momentum with the Gorsuch fight.
After all, Trump was only ever allowed to fill a Supreme Court vacancy because of Republicans’ obstruction of Obama nominee Merrick Garland, led by Senate Majority Leader Mitch McConnell. Gorsuch’s nomination was supported by the Judicial Crisis Network, a conservative “dark money” group that spent $17 million on blocking Garland and confirming the newest justice. When Gorsuch still failed to earn the necessary votes to pass the Senate, Republicans invoked the “nuclear option”: ending the filibuster by lowering the threshold for advancing Supreme Court nominees from 60 votes to a simple majority.
The same Obama-era obstruction and hyperpartisanship that resulted in Justice Gorsuch also produced more than 100 lower court vacancies. “It was like the gift from heaven,” Trump said last week of the open judicial seats while giving a speech in Ohio. Obviously, after years of leaning on procedural rules to block and delay Obama’s judicial nominees, the Senate GOP is now breaking and bending every rule to rush Trump’s nominees through.
In the past year, Senate Judiciary Chairman Chuck Grassley has scheduled hearings for nominees over the objections of home-state senators, departing with the century-old “blue slip” process. He has stacked multiple circuit court nominees into one hearing over the objections of Democrats, leaving little time for review and questioning. And he has ignored and undermined the evaluations of the nonpartisan American Bar Association, advancing nominees who failed to meet even basic professional standards.
The ABA unanimously deemed four of Trump’s judicial nominees “not qualified” in a single year; none of Obama’s nominees had earned that rating over eight years. One nominee, Brett Talley, received the unqualified rating for his complete lack of trial experience and still earned Grassley’s endorsement. Talley was eventually withdrawn from consideration following criticism over his inexperience and his failure to disclose his wife’s work in Trump’s White House, as well as his online posts defending “the first KKK” and disparaging Muslims, marriage equality, and Roe v. Wade. Another nominee, Leonard Steven Grasz, received an unqualified rating out of concerns of bias. Many of Grasz’s professional peers interviewed by the ABA had questioned his ability to “detach himself from his deeply-held social agenda and political loyalty.” Despite these serious concerns and his long history of fighting LGBTQ equality, Grasz was confirmed on a party-line vote and now sits as a judge on the 8th U.S. Circuit Court of Appeals.
The unqualified nominees and procedural breakdowns of the past year are unprecedented both in their brazenness and their sheer numbers, and would have been unthinkable just a few years ago. And with rumors of Justice Anthony Kennedy’s retirement circulating, we may yet witness the full aftermath of the Gorsuch fight in the next Supreme Court battle: that the end of the Supreme Court filibuster removed any remaining incentive to nominate moderate justices.
While the Supreme Court has a clear ideological divide, individual justices from both sides have at times reached across that divide or met in the middle. In fact, many of the court’s landmark opinions upholding race-based affirmative action and protecting reproductive and LGBTQ rights were authored by Ronald Reagan appointee Anthony Kennedy. Kennedy’s jurisprudence over the past two decades has transformed the place of LGBTQ people in American society, but this does not mean that he has turned out to be a liberal stalwart. Rather, as Yale law professor Reva Siegel shows, Kennedy’s opinions have come to play a significant role in developing constitutional law in part because he has tried to balance competing interests and arrive at solutions that might preserve social cohesion.
After Gorsuch, there will be no more Anthony Kennedys. Just last week, Trump took to Twitter to criticize former Justice John Paul Stevens’s op-ed calling for a repeal of the Second Amendment. He asserted that “we need more Republicans in 2018” and that the GOP “must ALWAYS hold the Supreme Court”—either ignorant or ambivalent to the fact that Justice Stevens was a registered Republican appointed by a Republican president. White House Counsel Don McGahn, Trump’s chief adviser on judicial selection, has stated more clearly that he wants conservative nominees who “won’t change and turn into someone else” after confirmation—and pointed to Gorsuch as the exemplar.
Should Trump get another Supreme Court appointment this summer, we will have a nominee as or more ideological than Gorsuch. The court will not just shift to the right but also become more patently partisan—joined by justices who appear more interested in winning culture wars than bridging social divides or realizing the Constitution’s promise of equal citizenship.
That would be a sadly appropriate legacy of Neil Gorsuch’s tragically partisan elevation to the Supreme Court.
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