Neil Gorsuch’s Woeful Record on Civil Rights
Glen Ford says it’s not specific statements or positions that have led many, including the NAACP, to oppose Trump’s Supreme Court nominee; it’s Gorsuch’s whole legal philosophy
DHARNA NOOR: Welcome to The Real News Network. I’m Dharna Noor in Baltimore. And welcome to another edition of the Ford Report.
This week the Senate holds their Confirmation Hearings for Trump’s Supreme Court nominee, Neil Gorsuch. Trump has defended Gorsuch’s credentials, but a new report from the NAACP’s Legal Defense Fund calls his civil rights record into question.
With us to discuss this is Glen Ford. Glen is joining us from Plainfield, New Jersey. He’s the co-founder and executive editor of the, “Black Agenda Report” and the author of “The Big Lie: Analysis of U.S. Press Coverage of the Grenada Invasion”. He’s also a regular reporter to The Real News Network. Thanks so much for joining us.
GLEN FORD: Thank you for having me.
DHARNA NOOR: Glen, the findings of the LDF’s report ultimately led them to oppose Gorsuch’s appointment, and like many others, they’ve requested a delay of his Confirmation Hearing. They noted that Gorsuch has praised the legal philosophies of Antonin Scalia, who died last February. Gorsuch, like Scalia, embraces originalism. He believes that the Constitution should be seen as a stable document, interpreted as it was meant to be when it was written. So, what’s your response to his adherence to originalism?
GLEN FORD: Well, one of the reasons that the NAACP Legal Defense Fund and other civil rights advocates want this delay — and they want to delay so they can look into Gorsuch’s record when he was an official in the Justice Department — is because it’s sometimes difficult to pin down these originalists’ positions because they really don’t feel that they have to take one. It is their approach to the law that is so insidious and so destructive.
So that, although Gorsuch has made comments regarding gay rights and people’s supposed rights to public vouchers for private schools and such, the real danger that these originalists pose is the way they interpret the Constitution.
And as you said, their interpretation of the Constitution is that you should not interpret it at all; that it should be viewed the way that the founders, the writers of the Constitution – who were all white, all male and largely slave-holders – the way they intended. So, that’s a very much weighted white supremacist document from the beginning.
The vehicle for these originalists is the Federalist Society, and that Society was founded in 1982 during the Reagan administration; and since that time, various Republican Presidents have been hacking the Federal judiciary with these originalists, these Federalists, ever since.
Basically, what they do is they turn the civil rights agenda on its head, by extending the right to discriminate to individuals and institutions, basically to business persons, and making it very difficult for the historical victims of discrimination to even get access to the law, to get standing in the courts.
And Neil Gorsuch is a very militant Federalist practitioner of that kind of approach. He uses the narrow interpretation of the Constitution to basically negate the right to equal protection under the law. It allows him to dismiss or to limit equal protection under the law to minorities, and to expand, by his interpretation – which he calls not an interpretation at all, but just a view of what the founders wanted – to expand that equal protection under the law to the people who are not historic victims of discrimination.
His philosophy and the philosophy of others like him is probably most dangerous when it comes to enforcing the civil rights aspects of government programs and policies, because if you can’t enforce a law, if you can’t put equal protection into the law, then that law has really no effect.
The Executive Branch is the branch that writes the regulations that makes these laws real. But when laws are passed by Congress, they are typically vaguely-worded, and it’s up to an administration to say under what circumstances A leads to B and then to C; to making that law something that is living and meaningful to the people who have to deal with it.
But right-wing judges find ways to rule against or dismiss the Executive Branch’s regulations that actually embody equal protection under the law. And that allows people like Gorsuch and his ilk, in the Federal Judiciary, to make civil rights practically, in a practical sense, meaningless. They are able, judicially, to draw lines through the law so that they’re just pieces of paper. And so it’s very difficult then for organizations like the NAACP Legal Defense Fund to say specifically Gorsuch made such a ruling or made such and such a statement that we can hone in on. It’s the approach, the general approach that they take which is most destructive.
DHARNA NOOR: What you say is true and many, including the NAACP have noted sort of the lack of the ability to see the record of folks like Gorsuch.
But there are some specific instances that the LDF refers to. As you say, they take issue with his sort of conservative opinion on the use of courtrooms; they quote him; they say that he wrote American Liberals have used courtrooms “to affect their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private school education.” Despite this position and his questionable position on things like reproductive rights and LGBTQ rights, some are saying that Democrats should support him.
Why do you think that is? Why are we being told that in some cases Democrats, especially moderate Democrats, should support him?
GLEN FORD: Well, you know, the Democratic Party is not a revolutionary party; it’s not even a reformist party. Some of its members like to make reformist statements, but most of the rulings that come down from the Supreme Court have to do with business practices.
And Democrats are just as entwined with the U.S. corporate system as the Republicans are. And they also dread the making of new law — that is granting of what right-wing people call new rights. And so, they’re not really as activist as the Republican right makes them out to be.
Ironically, it is the Federalists, the originalists, who always decry the making of new law by judges who are the most active in the realm of law. But instead of making new law, they are most active in disassembling those laws that they disfavor.
DHARNA NOOR: Glen Ford is the executive editor of, “The Black Agenda Report”. Glen, stick around; we’re going to pick this up in a part 2. Thanks so much for joining us.
GLEN FORD: Thank you.
DHARNA NOOR: And thank you for joining us on The Real News Network.
DHARNA NOOR: Welcome back to The Real News Network. We’ve been speaking about this week’s Senate Confirmation Hearings for Trump’s Supreme Court nominee, Neil Gorsuch.
And we’re here discussing this with Glen Ford. Glen is joining us from Plainfield, New Jersey. He is the co-founder and executive editor of “The Black Agenda Report” and the author of “The Big Lie: Analysis of the U.S. Press Coverage of the Grenada Invasion”, and of course, he’s a regular contributor to The Real News Network. Thanks for coming back with me, Glen.
GLEN FORD: Thanks for having me.
DHARNA NOOR: So, Glen we left off speaking about Neil Gorsuch’s record on civil rights, but can we talk about how important it is who is in the Supreme Court, in terms of defending Democratic gains?
GLEN FORD: Well, we have to start off with the obvious and that is that the Supreme Court is a lifetime job, and so if you’re appointed when you are in your 50s, you may be there 30 or even 40 years into the future. So, you don’t get more longevity than that.
But I think that there’s an over-emphasis on the differences between your usual Supreme Court appointees, whether they be Democrat or Republican, or at least the way things used to be, and there’s not enough specific attention payed to the role that the Federalists have played and have really changed the game.
There is no liberal or leftish equivalent to the Federalist society — that is… you have to go back to Thurgood Marshall, who was a premier civil rights attorney, who saw the world in civil rights’ terms, in a liberal interpretation of the Constitution, to see anything equivalent on the left to the Federalist Society — which is a group of lawyers who constantly speak of how this originalist philosophy can be applied to existing legislation that is proposed to become law, and to existing laws and the different challenges to the law.
So, you have an organized right-wing made up of lawyers and judges in this country who now exercise a kind of veto power when Republicans are in control; who bring with them a very well-organized, well-thought-out, strategic view of how they’re going to reshape the country through their interpretation of the Constitution. And there’s nothing like that coming from the Democratic side.
So that we see Barack Obama’s attempt to appoint a successor to Scalia was, in political terms, nothing much, from a liberal or progressive point-of-view. And yet, there was very little complaint from Democratic and from Progressive circles when he made that appointment.
And yet, the Republicans can be counted on to bring forward candidates and appointees to the Supreme Court who can really make some fundamental changes in the way the law works in the United States. There’s nothing like that on the left.
DHARNA NOOR: And Senate Democrats are actually considering filibustering Trump’s Supreme Court nominee. And if they do so, Trump has urged Republican Senators to invoke the so-called ‘nuclear option’, where they basically override a rule or precedent by a simple majority of 51 votes, instead of by a supermajority of 60 votes. So what would the significance of that be?
GLEN FORD: Well, the Democrats are calling that ‘blowing up’ the Congress; but we know from history, that the Republicans are the ones who are much more likely to light the match than the Democrats, who really don’t like excitement, they don’t like drama. They’re scared of any kind of change. The Republicans are not so reticent.
DHARNA NOOR: Thanks so much for joining us, Glen. And we hope to talk to you again soon.
GLEN FORD: Thank you for having me.
DHARNA NOOR: And thank you for joining us on The Real News Network.