Wednesday, April 17, 2024
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Andrew Tettenborn: The US Supreme Court is back in safe hands


For all his gaffes in the last three months, President Trump has got one thing spot-on: his nomination for the vacant spot on the Supreme Court. Of the eight remaining justices, four are committed liberals, three conservatives, and one a conservative waverer; hence what is at stake is the balance of the Court, which you must remember has the power to override legislation and to shape large swaths of American social policy (including religious freedom, the regulatory power of executive government, labour rights and so on). Last Friday the Senate, after a change in its recondite voting rules, which abolished the possibility of a filibuster in Supreme Court appointments (defeatable only by a 60-40 vote, which the Republicans didn’t have) approved Trump’s nominee Neil Gorsuch by simple majority. So the Court is back to full strength.

This is a matter for much relief. Gorsuch is discreet, competent and very, very bright. True, he is a conservative, but then so was Scalia, the justice he is slated to replace; so essentially we have continuity. Indeed, by a peculiar irony of fate he also neatly ticks a diversity box: he will be the only Episcopalian (the rest of the Court being Catholic or Jewish). Not that any of this cuts much ice with liberals, some of whom would have opposed Solomon himself if nominated by Trump; indeed, at least one commentator argued, apparently with a straight face, that the Supreme Court should remain one man down “until we know Trump is a legitimate president.”  Interestingly enough, however, the more they attack Gorsuch, the more convincing his candidature becomes.

Start with an actual decision regularly used to discredit him. In his present Court, he construed legislation requiring close attention to be paid to any requirement that “substantially burden[s] a person’s exercise of religion” as preventing a corporation run by a fiercely evangelical family being forced under affordable care laws to supply its employees with technically abortifacient forms of contraception. As he put it, the legislation “doesn’t just apply to protect popular religious beliefs: it does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve as a refuge of religious tolerance.” Quite. And besides, if you don’t like the legislation you can always try to get it changed. Not that this prevented his being viciously attacked by the abortion lobby and the liberal establishment for being anti-choice and pro-business. There’s only one thing to say. Are you surprised?

Or take a small vignette of life in the University of Colorado. Last year, Gorsuch took a class there, where he suggested that one result of limiting employers’ rights to ask female applicants about future family plans was that at least some would abuse the system in order to be hired and then almost immediately obtain company health benefits while pregnant. One student present (you guessed it: one with close Democratic links) dutifully wrote to the Judiciary Committee complaining that this showed misogyny and disrespect for women. Of course, some people might think that what Gorsuch said was self-evidently true, however unfortunate, and that he was showing a commendable degree of honesty. This one, dear reader, I leave up to you.

For that matter, look at the confirmation hearing itself. Gorsuch refused to be drawn on hot-button issues – abortion (a right currently, if controversially, held protected by the Constitution), voting rights, employees’ rights, the proper extent of discrimination law, and so on. One might have thought this about the only thing he could have properly done: did anyone really expect him to say something like “Vote for me and I promise always to support the workers”? But you can’t win with liberals., unable to tack onto any answers they didn’t like, actually criticised him for not answering questions of that kind. As far as they were concerned, it seems, the only acceptable judge was a judge who agreed with them and made it clear that he had prejudged as many issues as possible in their favour even before placing his behind on the bench. Now that makes you think.

Admittedly this leaves one awkwardness. Last year, when the boot was on the other foot, Obama nominated another judge, the excellent but admittedly liberal Merrick Garland, for this very position. Senate Republicans shamelessly themselves blocked the appointment, thus causing allegations that the nomination had been stolen. Admittedly, there was some justification, since Garland’s appointment would have (quite intentionally) shifted the Court decisively to the left, all ready for a would-be Clinton presidency. Nevertheless, there is room for embarrassment. But even that might be curable.

Trump now has a seriously devilish option open to him. Next time a liberal justice retires or dies, all he has to do is renominate Merrick Garland. The Democrats won’t know whether they are coming or going: but then is that so much of a change?

(Image: Ted Eyton)

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Andrew Tettenborn
Andrew Tettenborn
Andrew Tettenborn is a professor of commercial law at a well-known UK university, who also teaches in Europe and elsewhere. In the 2001 General Election he stood as Ukip’s candidate in Bath.

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