On January 31, 2017, President Donald Trump nominated Judge Neil Gorsuch to the United States Supreme Court. If confirmed, Judge Gorsuch could serve on the High Court for a half-century, ruling on questions of equal opportunity, free speech and religion, voting rights, environmental protection, privacy, reproductive rights and beyond. It is crucial that he gets a rigorous vetting by the United States Senate, including clear and candid responses about his approach to the law.
Judge Gorsuch could serve on the High Court for a half-century...It is crucial that he gets a rigorous vetting.
For those of us committed to a fair Supreme Court that protects Americans’ fundamental freedoms, experience points to several lessons for talking about the judicial confirmation process:
Lead with Values. Supreme Court nominations are about our nation’s highest principles and constitutional values. Describe what’s at stake in terms of those values, including Freedom, Opportunity, and Equal Justice. And note that we need a Justice who is fair-minded and independent. The same applies to discussing specific issues, such as ensuring a fair day in court, protecting a healthy environment, and upholding our right to privacy.
Out of the Mainstream. Large majorities of Americans embrace and depend on the constitutional right to privacy, freedom from racial bias, environmental protection, and other fundamental freedoms. We should insist that any new member of the Court be someone who falls well within the mainstream of American thought. The fact that Donald Trump outsourced his selection process to extreme groups like the Federalist Society and the Heritage Foundation raises grave concerns about independence and fairness.
Checks and Balances. Given the Trump Administration’s demonstrated willingness to overreach, the Supreme Court’s role as a check on politicians’ power is especially important. The nation cannot afford a Court or Justice that would rubber stamp the misuse of power. Similarly, a judge with a track record of allowing abuses of the little guy by government and large corporations is not the right choice for the High Court. We need a Justice who will ensure that government agencies can do their job and protect consumers and workers from corporate abuses.
The Position is Different, the Stakes are Higher. Point out that the Supreme Court is unique, and that different standards apply—for example, the High Court can choose to overrule established precedent in ways that lower courts cannot. Senate confirmation for a lower court position should not determine the outcome of a Supreme Court nomination.
Remember Merrick Garland. President Obama nominated highly qualified federal Judge Merrick Garland to fill Justice Scalia’s seat a year ago, and Senate Republicans refused to even give Judge Garland a hearing. Remind audiences of this history to counter arguments that filling the Court vacancy is now somehow urgent or critical, or that the President’s nominee “deserves” rapid consideration.
Avoid the “Judicial Activist” Label. It’s tempting to describe jurists like Judge Gorsuch and Justice Scalia who reach out to decide cases and overturn precedent as conservative “judicial activists.” But that term is a harmful one, used to demonize decisions like Brown v. Board of Education, Roe v. Wade, and the Marriage Equality cases that at last recognized the inherent equality of all people. Instead, note instances in which the judge has “ignored precedent,” or “overreached” to impose his personal views on the law and the nation.
Avoid the Umpire Metaphor. A Justice of the Supreme Court has the job of interpreting our Constitution and laws and applying them to the lives of millions of Americans. Push back against arguments that describe Justices as “umpires” who “call balls and strikes”—a metaphor that, if anything, describes trial court judges. A judicial candidate’s record of understanding the lives of everyday people, upholding the rights of the vulnerable, and providing a check on the misuse of power is the appropriate benchmark.
As more information about Judge Gorsuch’s record becomes available, we will provide additional messaging guidance on the nomination. In the meantime, check out The Opportunity Agenda’s additional resources for social justice communications.