Trump Nominates ‘Scalia Clone’ Neil Gorsuch for Supreme Court Vacancy
The Atlanta Black Star's Kamau Franklin says if confirmed, Gorsuch will mirror Scalia's reactionary rulings affecting blacks, women, the LGBT community and workers.
The Atlanta Black Star's Kamau Franklin says if confirmed, Gorsuch will mirror Scalia's reactionary rulings affecting blacks, women, the LGBT community and workers.
KIM BROWN: Welcome to The Real News Network. I’m Kim Brown.
Tonight, as you saw, President Donald Trump presented his choice to replace Supreme Court Justice, Antonin Scalia, who died in February of last year. Now, Trump’s choice is Neil Gorsuch, who currently serves as the Federal Appeals Court judge in Denver, Colorado. He has a law degree from Harvard Law School, PhD from Oxford University, and according to those who know him, he resembles Antonin Scalia in many ways, and is said to favor a literal interpretation of the Constitution.
Now, his main areas of interest are legal ethics, a topic which he has written on with regard to euthanasia, on which he opposes. Trump’s nomination announcement was highly unusual in the sense that he made it during prime-time television hours and actively tried to keep people guessing about his choice until the very last minute. Let’s have a look at President Trump’s announcement right here.
DONALD TRUMP: Thank you. Today I am keeping another promise to the American people by nominating Judge Neil Gorsuch, of the United States Supreme Court, to be of the United States Supreme Court.
KIM BROWN: So, joining us to discuss about the Gorsuch nomination is Kamau Franklin. He is an attorney and an organizer around issues such as youth development, police misconduct, and he’s political editor of the Atlanta Black Star. Kamau, we really appreciate you joining us.
Before we begin, let’s have a look at Gorsuch’s opening statements.
NEIL GORSUCH: Mr. President, Mr. Vice President, you and your team have shown me great courtesy in this process, and you’ve entrusted me with a most solemn assignment. Standing here in a house of history, and acutely aware of my own imperfections, I pledge that if I am confirmed I will do all my powers permit to be a faithful servant of the Constitution and laws of this great country.
For the last decade, I’ve worked as a federal judge in a court that spans six western states, serving about 20% of the continental United States and about 18 million people. The men and women I’ve worked with at every level in our circuit are an inspiration to me. I’ve watched them fearlessly tending to the rule of law, enforcing the promises of our Constitution, and living out daily their judicial oaths to administer justice equally to rich and poor alike.
KIM BROWN: So, Kamau, we’re taking a look at Neil Gorsuch’s background and just curious, I mean, how conservative a judge do you think that he will be? I mean, he pretty much worships at the alter of Antonin Scalia, per his own words.
KAMAU FRANKLIN: Well, I think he was chosen exactly for that reason, that he’s basically a small copy of Scalia, and his views on how the Constitution should be interpreted. He’s an originalist, a textualist, which means he looks at the Constitution through the eyes of the founders and how they think the Constitution should be interpreted and how it should be viewed. So, he doesn’t believe in adding on to the Constitution based on history, based on the passage of time and how the new society and new input of things that should be considered. He wants to read it as the founders originally wrote it and interpret it in a very limited fashion.
So he takes directly from Scalia, as you stated earlier. He is somebody who worships Scalia. I think he noted at one point that he cried upon hearing of Scalia’s death. I think, again one of the main reasons he was picked is because of that kind of closeness that he hews towards Scalia’s views on how the Constitution should be interpreted.
KIM BROWN: Yeah. That was pretty interesting. I was reading about Neil Gorsuch on SCOTUSblog and that was the lead paragraph about him, that he heard about Antonin Scalia’s passing while he was out skiing, and he said that he wept, that tears were streaming down his face after he found out about Scalia’s passing. I mean, that’s… that’s love right there.
But conservatives seem to be pretty happy with this selection, but he doesn’t seem to stand out in any way other than the fact that he has a solid resume for this position, despite his relatively young age. He is 49 years old. And some analysts say that he will actually have a textual or literal interpretation of the Constitution. I mean, he ruled against Obamacare once because of its requirement that church-affiliated organizations and businesses should follow the insurance provisions, even if they object to some of these on religious grounds.
So, what do you make of that aspect of Neil Gorsuch?
KAMAU FRANKLIN: Yeah, I think he’s more conservative. He’s a big, sort of bona fide hit. He basically makes their obstructionist behavior after Scalia’s death, something that they were going to be rewarded for. So, I think there’s no reason to think that obviously, Republicans, conservatives, are not going to back him. Again, I agree with you: I think he’s considered sort of a conservative, mainstream intellectual choice. Someone who writes eloquently, who speaks about the Constitution in a romanticized way. I think he gives the conservatives all that they need. They believe in pushing forward in someone who can’t be considered to be someone more conservative than Scalia, but yet right in his mode.
KIM BROWN: And most of his legal experience before becoming a judge was as a lawyer for corporate clients. How do you think this might influence his views on corporate matters, especially when they are counterpoised with the rights or the needs of ordinary citizens?
KAMAU FRANKLIN: Oh, I think again he’s going to rule in favor of corporations as having individual rights as corporations being able to donate or give as much money as they want, unrestricted money being given to the political process. I don’t expect him to do anything that sort of overturns the precedents that have already been laid through a conservative court over the years. I think corporations, again, will be celebrating this pick, will be quietly doing what they can to push it and make sure it happens. Would be trying to put pressure on the Democratic Senators to get them to vote for this particular nominee.
KIM BROWN: So his record also suggests that he prefers the courts not to interfere in the policy-making power of the Legislature or of the Executive. What do you think of such an approach, especially on the heels of Donald Trump’s Muslim ban, as it were, and the federal courts, some of them at least, ruled that people that were coming to this country via the seven nations that Donald Trump has forbade persons to enter from, it’s in some cases, those federal court orders were being ignored by the border patrol agents at a given airport. I’m thinking of Dulles Airport in Virginia, specifically. How would someone like Neil Gorsuch fall on this issue, in particular?
KAMAU FRANKLIN: Yeah. He basically would take a very conservative approach. I think he would not interfere in what he considered the pre-eminence of the legislative branch or the executive branch in setting policy and in making decisions. He would be someone who would be considered to be not someone who would try to set policy from the benches, he would say. So, he would not be a protector or stand up against executive decisions by the president. He would obviously… he would… his druthers would be or his choice would be to suggest that people should go back to the Legislature or that it’s all about how folks vote for their Legislature. But he is not going to interfere in Trump’s… or side with people against some of the either Executive Orders or legislation that’s going to happen to be passed over the next four years.
I think he’s someone who’s going to side with Clarence Thomas or be someone who’s going to be very close to Clarence Thomas to having sort of a limited judicial view of how the court should be instigated or be involved in matters that the legislature has decided upon.
KIM BROWN: One issue that is concerning some on the left, particularly those concerned about reproductive rights of women is that Neil Gorsuch is the fulfillment of Donald Trump’s campaign pledge to put a pro-lifer onto the bench. But some of his writings do indicate that he is certainly on the side of pro-life. He has written a book called The Future of Assisted Suicide and Euthanasia, and it includes lines – I’m reading here – that indicated that he would be anti-abortion. One specific line that drops this hint is “all human beings are intrinsically valuable, and that the intentional taking of human life by private persons is always wrong.” And this is according to this piece on Romper.com, which quotes a piece from the Washingtonpost.com.
Not sure where the resumption of Roe v. Wade stands now in the court system, but should it be re-presented or re-argued in front of the Supreme Court, it’s little doubt how Neil Gorsuch would rule.
KAMAU FRANKLIN: Yeah. I think Neil Gorsuch would rule to have not only extreme limits on abortion, but to lift abortion in terms of a woman having a choice. I think what they would probably do is try to make it more something that’s within the states’ purview, so a states’ rights approach in a limited time… I think in a limited future, that’s probably where we’re going to be headed with abortion rights. But I think with this conservative seizing of high court advantage again and with some of the older judges about to retire, I think Kennedy is probably the swing vote. But once Kennedy retires, who takes a more liberal view on social issues, I think the next nominee that Donald Trump gets to choose, if that happens within the next four years, and you still have a majority Republican Senate, than I think Roe v. Wade becomes seriously in danger of being overturned. I think that’s a real possibility in the near future. I think this solidifies again a 5-4 on most issues, social issues will probably something… it’s probably something that Republicans can’t win now with Kennedy being someone… Anthony Kennedy being someone who skews to, let’s say, a more liberal view on those things. But I think that’s only a matter of time, and that part of this is to wait out the retirement of several judges than to hope to have another pick that will give them a 6-3 advantage.
KIM BROWN: So the big question for the Democrats is whether that they will try to block Trump’s nomination with a filibuster, and there are already two Democratic senators that have come out and said that they will oppose this nomination, one being Senator Ed Markey and the other being Senator Sherrod Brown. So, do the Democrats have the votes in the Senate to actually stop the confirmation of Neil Gorsuch to the Supreme Court?
KAMAU FRANKLIN: Under the way that who’s operating now, where you need 60 votes, and that’s obviously the historical way in which a Supreme Court nominee has to pass muster with the Senate, that he has to – or he or she has to gain 60 votes. Under those rules, yes, the Democrats do have enough to filibuster. But the issue becomes whether or not the Republicans through a majority rule, will do what’s called the nuclear option and try to make the passage of this nominee something that’s a majority vote as opposed to a super-majority vote.
So the Democrats, one would have to hold fast and really filibuster this nominee, which is always in doubt in terms of having the Democrats do anything in unison, but Republicans are famous for basically being obstructionist and holding steady. If they say that they are standing on some principle, whether or not it’s a principle anybody else believes in but them, at the very least, they will stand for it. Democrats are unfortunately not famous for standing together and holding a line, but instead, compromising in a place where Republicans have refused to compromise, which is partly what’s got us here in the first place.
So I think on its face, there’s a possibility that the outrageousness of waiting a whole year to replace Scalia post his death is something that will give some backbone to the Democrats. But that’s not guaranteed and it’s not secured, and if they decide to not hold together, there’s a possibility that they could get enough votes to nominate this nominee with the 60 votes needed.
KIM BROWN: Trump made a sort of a media spectacle out of the nomination and normally Supreme Court nominees are announced in the middle of the day with little fanfare. Trump however did it during prime time and got all the networks to cover it. Why do you think he did this, besides the fact that he wanted to keep us at work until nine o’clock at night? But how does this help him at this time, sort of making a grand production of what is supposed to be a somber announcement for the highest court in the land?
KAMAU FRANKLIN: To be honest, I think part of it is the most easy reason, is that Trump is an egomaniac. And as much attention as he can possibly get, he wants, and for him, he thinks this puts him on a grand stage, of course, as the president, to make a prime-time announcement as we talked about in sort of apprenticeship-like fashion where he has folks guessing as to who this pick will be. I think the other thing is that he’s courting his base, I think, his white nationalist consigliere, Bannon, and him are probably plotting to make sure that they can court their base, they can show their base they’re acting in a way in which they promised they would, which is to continue having… pushing a conservative agenda, so this gives him the widest audience possible to show that even in the face of some of his missteps, which he doesn’t acknowledge his missteps, that he’s still pushing through and pushing conservative agenda. It gives him the opportunity to put the Republicans on their heels – and I do mean the Republicans – by making sure that they hold firm to supporting any nominee that he puts forth.
Again, I think this nominee is somebody who Republicans will continually back, but the question for Donald Trump is, can he have the Republican Senate decide that if the Democrats try to filibuster this nominee, that they will employ the nuclear option, change the rules of the Senate, and make this a straight up, simple majority passage of this nominee for the Supreme Court.
KIM BROWN: Kamau, I want to get back to a point that you made earlier regarding if Neil Gorsuch is actually to be confirmed to the Supreme Court it would basically restore what was there prior to Scalia’s passing. You know, you have a really strict constitutionalist, super-conservative, whatever your opinions of Antonin Scalia are, he was extremely verbose in his dissents and his decisions, et cetera, but the concern seems to be, or the real concern, rather, could lie in Trump’s potential second selection to the Supreme Court should Ruth Bader Ginsberg or even Justice Kennedy, if either one of those judges decide to retire, then that would leave an opening for Trump to appoint a second justice, and that person could possibly even be more conservative than Gorsuch. What are your thoughts about Trump having the opportunity to select more than one justice to the court?
KAMAU FRANKLIN: Yeah. I think it’s something that’s more likely than not, that I think some people are also saying that part of the reason that this particular nominee was picked, was to show Kennedy that he was going mainstream right wing, but relatively speaking, mainstream, somebody who has credentials, who doesn’t have a history that’s out there that could be looked upon as anything more conservative than Scalia. And that’s saying something, if you could be more conservative than Scalia. But something that can tell… suggest to Kennedy that if he retires, that the court is in, quote-unquote, “good, conservative hands”. I think in addition to Ginsberg potentially retiring, you also have Breyer, who’s upwards, I think in his 70s or 80s, who is also another person who is more on the liberal side, who can retire and add to the Republican majority in this particular court.
So, I think this lays the basis with something. I think, because of the ages of the other Supreme Court justices that this is certainly in line within the next two or three years of this administration’s ability to appoint another nominee who would guarantee — probably for at least another two decades — that this court would be a conservative court that wouldn’t look out for people’s interests, that would gear towards corporate interests, that would limit the court’s ability to step in on unconstitutional laws and sort of be a bulwark for protecting society. I think instead this court is headed in the opposite way where, again, a year ago, it seemed like this court would be a little bit less conservative, somewhat more liberal, and somewhat more protective of people’s constitutional and civil rights. I think that time has now passed.
KIM BROWN: What a difference a year makes, indeed. Well, we appreciate you joining us tonight. We’ve been speaking with Kamau Franklin. He’s an attorney and organizer around issues such as youth development, police misconduct, and he’s the political editor of the Atlanta Black Star. We have been talking about Donald Trump’s announcement – prime time announcement – of his selection to be the next justice on the Supreme Court, Neil Gorsuch of Denver, Colorado. And we will have a lot more analysis and discussion about the selection and what it could mean for the courts going forward, because, Kamau, if I’m not mistaken, there’s a handful of cases making their way up to the Supreme Court regarding immigration, gun control, union rights. So, this could be an interesting time in American jurisprudence coming up for us.
KAMAU FRANKLIN: Yeah, there are definitely some important cases coming up on civil rights, too, gun rights, as you said, that, again, will assure that there is going to be conservative decisions and that’s going to be really hurtful for people’s individual rights. So, I think this is something that people who care about these issues have to try to hold Democrats’ feet to the fire to make them filibuster and to see if they can break the Republican ranks so that they don’t invoke the nuclear option and make it a simple majority vote.
KIM BROWN: Indeed. We’ve been speaking with Kamau Franklin. On behalf of everyone here at The Real News Network, I’m Kim Brown. Thank you so much for joining us.