The Case Against Neil Gorsuch
The Supreme Court nominee’s jurisprudence shows he values religious people’s beliefs above all else.
By Dahlia Lithwick
MARCH 19 2017 5:55 AM
Senate Democrats are having a tricky time finding a solid toehold in their resistance to Judge Neil Gorsuch. Gorsuch, the Supreme Court nominee whose hearings start Monday, is well-liked and—at least by Republican jurisprudential standards—well-qualified. The one line of opposition Democrats seem to have settled on is that Gorsuch unerringly sides with the powerful and wealthy, leaving workers and vulnerable citizens to fend for themselves. The animating theory here seems to be that tying Gorsuch’s support for big business and his opposition to campaign-finance reform to the larger narrative of the Trump administration’s corruption and cruelty is the best way to link the nominee to the insanity of our current national politics. That he will likely be terrible for women, minorities, and other disadvantaged groups is a part of that story as well.
The problem for Democrats in the Senate is that, by showing up for the hearings and the vote, they’ve given up on their best argument: that the nomination is wholly illegitimate. Gorsuch may or may not be a good judge, but there is no principled reason for him to have a hearing when Merrick Garland did not. This is a problem of power, not legal qualifications. And there is not much any Democratic politician can say about that once she’s sitting in a Senate chamber debating the merits of the nominee.
But there’s another, almost more consequential issue at play when it comes to talking about Judge Gorsuch. It’s a problem that has to do with faith, and the many ways in which it has become the third rail of judicial confirmation politics. This has nothing to do with the prospective justice’s personal faith as an Episcopalian and everything to do with his willingness to let people of faith impose their views on others. The problem of religion in the courts centers on the alarming tendency to honor the claims of religious people that their suffering is the only relevant issue. If we cannot begin to have a conversation about why this is a problem, it will be all but impossible to talk about Gorsuch’s qualifications in a serious way.
Our current religious-liberty jurisprudence, as laid out by the Supreme Court in its Hobby Lobby opinion, is extremely deferential toward religious believers. What believers assert about their faith must not be questioned or even assessed. Religious dissenters who seek to be exempted from neutral and generally applicable laws are given the benefit of the doubt, even when others are harmed. Sometimes those harms are not even taken into account.
http://www.slate.com/articles/news_and_politics/jurisprudence/2017/03/neil_gorsuch_s_confirmation_hearings_must_focus_on_his_views_on_religious.html
