A string of decidedly conservative rulings from new Supreme Court Justice Neil Gorsuch has Democratic senators grumbling: We told you so.
During his less than three months he has occupied late Justice Antonin Scalia’s seat on the high court, Gorsuch is sending signals that he could be one of its most conservative jurists. He has often aligned himself with the judicial stalwarts of the right, Justices Clarence Thomas and Samuel Alito.
Story Continued Below
Gorsuch publicly disagreed with his colleagues’ decision to pass up a challenge to the McCain-Feingold law’s ban on so-called soft money. He dissented from a ruling enforcing same-sex couple’s rights to have their names on their children’s birth certificates. He lamented the court’s refusal to hear a case about the right to carry a weapon in public. He took a strong stand in favor of churches’ right to public subsidies. And he signed an opinion saying he would have allowed President Donald Trump’s travel ban to go into effect now, in full.
“We’ve got another Scalia,” declared Sen. Dianne Feinstein of California, the top Democrat on the Senate Judiciary Committee.
Feinstein told POLITICO she’d looked at Gorsuch’s early rulings and saw no sign of moderation from conservative orthodoxy. “Right down the line. Everything — everything,” she said. “I’m surprised that it’s so comprehensive.”
Sen. Richard Blumenthal of Connecticut — a former Supreme Court clerk — said Gorsuch’s early record on the court is in tension with the humble and evenhanded approach he touted during his confirmation hearings in March.
“In a way, I’m surprised that he hasn’t demonstrated more independence. I am surprised because in his demeanor and his tone he really made a huge effort to show his openness — which some of us thought might be more an act than it was a real persona,” Blumenthal said, before adding: “So far, I have to say I’m disappointed.”
While some thought Gorsuch’s history of concern for religious freedom might give him pause about Trump’s travel ban executive order seen by critics as part of a ban on Muslims, the new justice joined Thomas and Alito in an opinion issued Monday saying Trump had a strong chance of prevailing in the litigation and should be able to move ahead with his plan.
“On the travel ban, I think he’s fulfilling the worst expectations so far of his opponents and probably the best hopes of his supporters,” Blumenthal said. The conservative faction “gave every indication they were ready willing and able to uphold the travel ban in its entirety. So as for any objection he has, he seems to be firmly in the administration’s corner.”
At Gorsuch’s confirmation hearings, some Democrats like Sen. Sheldon Whitehouse said the enthusiastic support the 10th Circuit judge was getting from groups like the Federalist Society, the National Rifle Association and others showed that they had very solid indications that he would back their views on issues like campaign finance or gun rights, even though his record of writings and rulings on those topics was slim.
“It sure looks like I was right,” Whitehouse (D-R.I.) said Tuesday. “It’s too early to draw any final conclusions but the early signals are ominous about him being the tool of the creepy billionaire coalition.”
Whitehouse said Gorsuch’s indication last month that he wanted to consider overturning the ban on soft money was the “most alarming” of his actions thus far.
“When you look at what the Supreme Court has done to enable the dark money deluge that the Republicans’ backers profit so much from, he sent a pretty strong signal that he’s all for unlimited money, dark money and the rest of the pestilence that Citizens United unleashed,” the Rhode Island Democrat said, referring to the high court’s 2009 ruling that set in motion the rise of Superpacs and a flood of undisclosed political donations.
Like some Democratic nominees before him, Gorsuch was cagey about many of his views during his hearings. But Whitehouse said there’s a complex method of signaling, second-hand reports and vouching that informs key leaders on where a nominee stands.
“When the power brokers see enough semaphore, they can draw the logical conclusion that this is going to be our guy,” Whitehouse said.
Senate Judiciary Committee Republicans had a sharply different assessment of Gorsuch’s early tenure.
“He’s fantastic. He’s awesome. I’m a huge fan,” gushed Sen. Mike Lee of Utah, a former Supreme Court clerk and the only lawmaker on Trump’s list of potential justices. “It’s going as I expected and my expectations were high and I’ve not been disappointed in the least.”
“I think he is performing as a principled constitutionalist, which is exactly what we hoped for and expected,” added Sen. Ted Cruz of Texas, another former clerk.
Sen. Thom Tillis of North Carolina said Gorsuch’s early moves were “stretching the thinking of the justices.”
“He’s going to go down in history as one of the great ones,” Tillis said confidently.
Tillis also said he’s sure Gorsuch will demonstrate independence from the Trump administration. “I have no doubt in my mind. ,” the North Carolina Republican said. “Justice Gorsuch has a lifetime appointment. The beauty of it is: nobody can fire him. I think he’s been independent and is going to continue to be independent.”
Some Democrats did say they are still holding out hope on that front, to some degree or another.
“There may be some issues I think where you see the loyalties of the Republican appointees tend to be more toward the right-wing billionaire coalition than to a particular president, so if Trump does something dumb or flagrantly unconstitutional, I don’t see him getting a big pass on that,” Whitehouse said.
Blumenthal noted that the justice he clerked for, Harry Blackmun, started out conservative and grew more centrist or even liberal over the years.
“The jury is still out. He has yet to finish a full term. We’ll see what his profile is on a lot of cases,” Blumenthal said. “The big question will be whether he veers away from the ideological lane where he started and grows in the job.”