In just 12 days, President Donald Trump has verified what his strongest supporters and critics believe about him, that he’s on a mission to deliver radical change that runs over everyone, and everything, that stands in his way.
Following the White House event Tuesday night at which Mr. Trump announced Neil Gorsuch as his choice to fill the vacant seat on the U.S. Supreme Court, Ohio experts in reproductive rights, immigration, voting and human rights shared their thoughts Wednesday morning with reporters.
Jennifer Branch, based in Cincinnati, is an expert in reproductive rights and one of the lead counsel on the Obergefell v. Hodges (marriage equality) case. David Leopold is past president of the American Immigration Lawyers Association and counsel to Suha Abushamma, a Cleveland Clinic doctor forced to leave the country because of Trump’s executive order banning visitors from some predominantly Muslim countries. Daniel J. Tokaji is an Ohio State University professor and authority on the law of elections and democracy. Mr. Tokaji focuses on the role of the courts in American democracy.
Mr. Leopold made it clear that “courts are the front line in the defense of liberty,” adding that while Justice Antonin Scalia, whose death early last year created a seat to be filled to bring the number of justices back to nine, was a conservative, even he understood that the rights of immigrants need to be protected.
Ms. Branch expressed her concerns that the nomination of Mr. Gorsuch to fill Scalia’s seat will hamper future use of the court room as a venue to protect established rights enumerated in the U.S. Constitution and the Bill of Rights. In a decision Justice Gorsuch issued in a Utah case to defund planned parenthood, her concern is Trump’s nominee will work to overturn the landmark decision giving women a constitutional right to an abortion, Roe v Wade. Ohio passed a law to defund Planned Parenthood, a national woman’s health group that among its many services to both women and men offers abortion services, thus putting it dead center in the scope of groups social conservatives want to eliminate. Ohio’s defunding of Planned Parenthood is unconstitutional, Branch opined, but it’s been appealed to the Sixth Circuit Court of Appeals, which potentially could put it on track to the supreme court. Branch anticipates the new Republican-controlled Congress will pass a national law defunding Planned Parenthood, which under current law, she said, is unconstitutional. Should Justice Gorsuch win confirmation by the full Senate, the likelihood of which is good given the power Republicans wield in the upper chamber now, Planned Parenthood and Roe v Wade would become endangered.
Ms. Branch and Mr. Tokaji expressed concerns that courtrooms may not be as open as they once were, based on an article written by Gorsuch in 2005 that says liberals have an “addiction to the courtroom” to further their agenda by changing the law. The courtroom is a “hallmark of our country,” Branch said, noting that courtrooms stop “discrimination and unconstitutional law from hurting people.” But for courtrooms, she said, separate drinking fountains for white and blacks would still be the law of the land, and the ability for same sex partners to marry and women now protected by the U.S. Constitution when they seek an abortion would no longer exist.
Mr. Tokaji, well respected on the national stage, said everyone has learned in the president’s first dozen days in office, that “we should take him very seriously when he says he intends to do something.” The OSU law professor, who was only expressing his opinion, said Gorsuch is a very ideologically conservative justice. Based on Gorsuch’s record, Tokaji believes the nominee will be more of an ideologically conservative than Justice Scalia, but not as radical as Justice Clarence Thomas. The president’s nominee will please everyone on the religious right, Tokaji volunteered, given Gorsuch’s siding with corporations like Hobby Lobby, and his history of decisions that work against workers but for administrators.
Mr. Tokaji cited one case, Williams v Lafayette, in which Neil Gorsuch said police officers who killed a man running away from them by shooting him in head with a taser should not be subjected to a claim of excessive force. Further troubling Mr. Tokaji are Gorsuch’s rulings regarding workers that consistently side with employers on sex discrimination and whistle blowers. Like Justice Scalia, Justice Gorsuch shows deference to the interpretation of law by administrative agencies.
Echoing Jennifer Branch’s concern about judicial restraint, Mr. Tokaji said that Gorsuch’s notion that liberals use courtrooms to further their agenda won’t be applied equally to conservatives, who use the same courtrooms to achieve their ends. Courts should exercise restraint, Tokaji said, so the real question is whether Gorsuch will practice the same restraint going forward that he “so piously preached back in 2005.”
Others voices chimed in Wednesday on President Trump’s nominee. Kristen Clarke, president and executive director of the national Lawyers’ Committee for Civil Rights Under Law (Lawyers’ Committee), said, “Our country sits on the brink of constitutional crisis. Our nation deserves a Supreme Court nominee who will be faithful in upholding the Constitution of the United States, and fair in their interpretation and application of federal civil rights laws. As we have done with all nominees, the Lawyers’ Committee for Civil Rights Under Law will conduct an independent evaluation of Judge Gorsuch’s jurisprudence and full record to determine whether or not they are qualified to sit on our nation’s highest court. We look forward to working closely with the Senate to ensure that a full and fair hearing of the nominee is conducted.” Clarke said her group will issue a full report regarding the nomination of Gorsuch.
Sandy Theis, ProgressOhio Executive Director, said, “Neil Gorsuch’s fringe views on health care and contraception make him the enemy of women. If confirmed, he would work to roll back women’s reproductive rights and hard-won protections against discrimination in the workplace. He’s even been endorsed by the founder of the National Organization for Marriage, an anti-LGBT extremist group. The people of Ohio deserve and demand that no vote be taken on Judge Gorsuch or other court nominees until they undergo extreme vetting.’”
On his Wednesday call with reporters, Ohio Senator Sherrod Brown said he will vote against Neil Gorsuch, citing among other reasons the nominee’s belief that corporations are people.
If he wins Senate confirmation, Justice Gorsuch, now 49 years old, would become the youngest Supreme Court justice since Clarence Thomas was confirmed in 1991. He would also become the first ever member of the court to serve alongside a justice for whom he once clerked.
As a testament to his conservative bona fides, the National Rifle Association, the Family Research Council, the U.S. Chamber of Commerce, the Koch political network and the head of the Federalist Society formally endorsed him within minutes of the announcement.
For those unfamiliar with Justice Gorsuch, he attended an elite prep school in the D.C. suburbs before going to Columbia, Harvard Law and then Oxford. He was a Truman scholar who clerked for David Sentelle, Anthony Kennedy and Byron White. He spent 10 years at a prestigious D.C. firm and worked in George W. Bush’s Justice Department.