Anti-Civil Rights Judge Neil Gorsuch Sworn In As Supreme Court Justice

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Kyle Barry of the NAACP Legal Defense Fund says that Gorsuch has a long record of hostility towards civil rights and in favor of big business

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Story Transcript

KIM BROWN: Welcome to The Real News Network in Baltimore. I’m Kim Brown.

On Monday, Neil Gorsuch was sworn in as an Associate Justice to the Supreme Court, filling the vacancy left by the late Antonin Scalia, after he died last February. During the public ceremony at the Rose Garden, Gorsuch had this to say.

NEIL GORSUCH: The American people… I am humbled by the trust placed in me today. I will never forget that to whom much is given, much will be expected. And I promise you that I will do all my powers permit to be a faithful servant of the Constitution and laws, of this great nation. Thank you.

DONALD TRUMP: I’ve always heard that the most important thing that a president of the United States does is appoint people. Hopefully great people like this appointment, to the United States Supreme Court. And I can say this is a great honor.

KIM BROWN: Gorsuch becomes the first Justice who will work alongside of a sitting Justice for whom he used to clerk, Justice Anthony Kennedy, back in 1993. Monday’s ceremony concludes a fairly contentious process to get Gorsuch to the bench. Stated Democrats attempted to filibuster his nomination, and his subsequent confirmation, and that prompted Senate Republicans led by majority leader Mitch McConnell to employ the so-called “nuclear option”, changing the Senate rules so that Gorsuch could be confirmed, just by a simple majority.

So, now that the Supreme Court will be fully operational for the first time in over a year. What role will Neil Gorsuch play regarding cases facing the court involving issues like police brutality and LGBTQ rights?

Joining us today is Kyle Barry. He is Policy Counsel with the NAACP’s Legal Defense Fund, who opposed Gorsuch’s nomination to the Supreme Court, and he is the primary author of a report titled, “The Civil Rights Record of Judge Neil M. Gorsuch” Kyle joins us today. Kyle, thank you so much for being here.

KYLE BARRY: Thanks for having me.

KIM BROWN: Now, Justice Gorsuch has been on Colorado’s 10th Circuit Court for over a decade. What were you able to glean from his record in your report?

KYLE BARRY: Sure. Judge Gorsuch -– Justice Gorsuch now –- obviously has a lengthy record on the Court of Appeals, and what we found at looking at about a thousand of his decisions, was that he had a consistent hostility toward civil rights. Both in terms of the rights themselves, and in particular allowing civil rights claimants to have access to the courts, to bring their claims in, to vindicate their rights, and to go to courts to ensure that the promise of equal justice under the law is fulfilled.

And we looked at… this was true across various issues, whether it was denying relief to capital defendants, or ruling against plaintiffs in employment discrimination claims, or ruling against the rights of disabled schoolchildren. In each case, he narrowly applied civil rights statutes to limit relief. And this was even in divided panels, when other colleagues on the Court disagreed with him.

And we found that overall, he was far more likely, and had a tendency toward ruling in favor of the more powerful parties, whether that was a big corporation, or whether that was the government, and ruling against civil rights plaintiffs, and criminal defendants in particular.

KIM BROWN: And one of these cases, interestingly enough, actually came up during Neil Gorsuch’s Senate confirmation hearings. Tell us about that case, because I believe that was pretty unusual for a case, or a decision, done by a potential Supreme Court nominee, to be ruled upon while that nominee was actually in the middle of being confirmed. What can you tell us about that?

KYLE BARRY: Sure. There were two of his decisions that were most frequently discussed during his hearing. The one you are talking about deals with the rights of disabled schoolchildren, which I mentioned before, and this type of education and the type of benefits from education that federal law provides to them.

And what happened when this issue in a particular case came before Judge Gorsuch, is that he applied a very narrow understanding of that law. And he used a phrase that was… he wrote, “Merely more than de minimis educational benefits,” for the student in this particular case, which means a benefit that is marginally more than nothing. It’s an extremely low standard, and an extremely minor guarantee of federal law, as Judge Gorsuch wrote.

This term actually in the middle -– as you said –- in the middle of his hearing testimony, the Supreme Court unanimously — 8 to 0 — handed down a decision saying that that standard was incorrect, and that students bringing claims under this federal protection are actually entitled to more than that.

So, it was a moment of drama in the hearing, for sure, and I think an important example, and an illustrative example of his record, and his approach to civil rights claims.

KIM BROWN: Let’s talk about what could be awaiting the new Supreme Court Justice, in terms of cases that the court could decide to hear. And let’s begin with the issue of police brutality, and the case Salazar Limon versus the City of Houston, Texas. What can you tell us about that?

KYLE BARRY: Sure. This is a case, the petition for certiorari, which means the petition asking the Supreme Court to take the case, is now pending. The Supreme Court in its conference among the justices this week, with Justice Gorsuch there, will be discussing whether to take this case.

And this involves a very troubling back pattern of police violence, where a Mexican immigrant, lawfully in the United States, was pulled over for speeding, he had a valid license, he had no criminal record, he had no outstanding warrants on him, and the police officer told him, well, you’re going to jail, and the officer offered no explanation.

And what’s undisputed, is that at this point the person who was pulled over, turned away and walked away from the police officer. The officer ended up pulling his gun, firing a single shot that hit the plaintiff in the back, and left him paralyzed from the waist down.

And the dispute really at bottom here is whether the officer claimed, as is so common, almost universal, that the plaintiff -– or the suspect -– when he was pulled over, reached for his waistband, and therefore that justified the use of discharging his weapon. And the plaintiff, of course, does not agree with that account of the facts. And the question is really whether the officer is entitled to a judgment in his favor in this case, merely because he said he saw the individual reach for his waistband.

And of course this person was unarmed, no weapons were found in him, and so this is a… thinking about this in the broader climate of police violence, and the systemic problems of police brutality, particularly against people of color and African-Americans, this is a very significant case if the court decides to take it.

KIM BROWN: And other aspects about how Justice Gorsuch could rule in regards to civil rights, has to do with LGBTQ and transgender rights, both in the work place and in the bathroom. The LDF report references this. Can you tell us about that, Kyle?

KYLE BARRY: Sure. Without question, equality for transgender people, for the LGBT community, more broadly, is an issue that has been squarely before the federal courts, and will be before the Supreme Court in the near future.

A couple of key cases to keep in mind: one, the court had granted this term, a claim brought under Title 9 by a transgender student in Virginia, who claimed that there is a federal right for transgender students to use the bathroom that corresponds to their gender identity. And that was consistent with guidance that the education department under the Obama administration had issued. And the 4th Circuit Court of Appeals ruled in the student’s favor, and said that Title 9 does protect that right of transgendered students.

The Supreme Court took the case and ended up sending it back down to the lower courts, when the Trump administration withdrew that very guidance that was at issue. And so, that’s a case that the 4th Circuit will reconsider, and could make its way back to the court next term with Justice Gorsuch there.

Two other very important issues, one involves protection in the work place. There’s the Federal Courts of Appeals are actually divided on the question of whether Title 7 protects, or bans, discrimination on the basis of sexual orientation. Just last week, there was a case from the 7th Circuit Court of Appeals, saying that Title 7 does make that kind of discrimination unlawful, and that employees do enjoy protection against that kind of discrimination.

So, with disagreement among the lower courts, that makes it very likely that the Supreme Court will take it, and resolve that dispute.

And then finally, there have been several cases at the State Court level, where people who provide services, most commonly to married couples and same sex marriages, have tried to deny those services, and have invoked their religious objections. And have raised 1st Amendment claims saying that because of their religious beliefs, they’re not required to comply with laws that prohibit discrimination in public accommodation.

And it seems likely that one or more of those cases, will make its way to the Supreme Court, as well.

KIM BROWN: Indeed. Well, we certainly will keep an eye on how now Justice Gorsuch does rule, and whether or not he will be an active participant during Supreme Court proceedings, unlike some of his colleagues, but it’ll be certainly telling to see what this new Justice brings to the court, or beings to the bench, rather.

We’ve been speaking with Kyle Barry. Kyle is Policy Council with the NAACP’s Legal Defense Fund. He is also one of the lead authors of the LDF’s report titled, “The Civil Rights Record of Judge Neil M. Gorsuch,” which we will have a link right beneath this interview.

Kyle, we thank you very much for taking your time and speaking with us.

KYLE BARRY: Thanks for having me.

KIM BROWN: And thank you for watching The Real News Network.

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