Neil Gorsuch to Fill Supreme Court Vacancy at Critical Time for the Nation

COMMENTARY Courts

Neil Gorsuch to Fill Supreme Court Vacancy at Critical Time for the Nation

Apr 7th, 2017 5 min read
COMMENTARY BY
Elizabeth Slattery

Legal Fellow and Appellate Advocacy Program Manager, Meese Center for Legal and Judicial Studies

Elizabeth Slattery researches and writes on the rule of law, separation of powers, civil rights, and other constitutional issues.

After four days of scrutinizing hearings and nearly a week of vociferous debate, the U.S. Senate has voted 54-45 to confirm Neil Gorsuch as an associate Supreme Court justice.

Gorsuch’s sterling credentials and demonstrated fidelity to the Constitution and the rule of law should give all Americans confidence that he will be a fair and impartial justice.

Chief Justice John Roberts is set to swear him in early next week, and Gorsuch will take his seat immediately.

The ceremony will round out a uniquely transparent nomination process. President Donald Trump was clear about the type of justice he would appoint, even taking the unprecedented step of publishing a list of candidates from which he would choose.

He repeated his promise to appoint someone from the list throughout the campaign, often citing the fact that many Americans would vote for him because of the Supreme Court vacancy.

This turned out to be true. Polls show that the future makeup of the Supreme Court was a leading concern of the American people, and it was this promise—more than anything else—that convinced many to support him.

Trump fulfilled his promise by nominating Gorsuch, to acclaim from conservatives and even some fair-minded liberals.

Senate Minority Leader Chuck Schumer pledged to oppose the nomination to the bitter end—even though neither he nor any other Democrat opposed his nomination to the 10th U.S. Circuit Court of Appeals 11 years ago.

Senate Democrats found themselves in an awkward position, choosing between following their party’s leadership in opposing the nomination of an eminently well-qualified and well-respected jurist, or representing the American people who voted in favor of Trump and his Supreme Court candidates.

Despite Senate Democrats’ unjustified attempts to thwart his confirmation, Gorsuch will now take his seat on the court, where he will be a natural successor to Justice Antonin Scalia, a leading voice on religious liberty.

There is a need for leadership at the Supreme Court, since the justices are slated to hear oral argument in Trinity Lutheran Church of Columbia v. Pauley on April 19.

In this First Amendment challenge, a church sued Missouri for denying its application for a grant to install rubber surfaces made from recycled tires on the church’s daycare playground.

The state of Missouri claims that Locke v. Davey (2004), a Supreme Court case involving state funds being used for educating pastors, allows it to exclude churches from state-funded programs because there is “‘no break in the link’ between state funds and religion.”

But Trinity Lutheran argues that the state’s categorical exclusion of churches from public grant programs is “an overbroad and unconstitutional restriction on the faithful’s ability to participate on equal terms in public life.”

Gorsuch’s vote in this case could be pivotal.

The free exercise of religion stands as one of the most precious rights Americans enjoy, and Gorsuch carries a strong record upholding that right for all Americans. His record shows a respect for sincere religious beliefs, regardless of whether they are considered politically correct or popular today.

Most notably, Gorsuch was involved in two of the biggest cases involving religious liberty that have reached the Supreme Court in recent years: Burwell v. Hobby Lobby and Little Sisters of the Poor v. Burwell.

Both cases involved challenges to the regulation issued pursuant to Obamacare that required employers to pay for or facilitate access to contraception and potentially life-ending drugs and devices as part of their employee health insurance plans.

scotusreligiousfreedom

Defenders of religious liberty rally in front of the U.S. Supreme Court during Burwell v. Hobby Lobby, in which the court reaffirmed the ruling of Judge Neil Gorsuch’s 10th U.S. Circuit Court of Appeals. (Photo: Jay Mallin/Zuma Press/Newscom)

In Hobby Lobby, for-profit employers with religious objections challenged the requirement under a federal law that prohibits the government from substantially burdening religious exercise. Before the case reached the Supreme Court, Gorsuch’s court heard the case and ruled in favor of Hobby Lobby.

In a concurring opinion, Gorsuch wrote that the law “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.”

The Little Sisters case involved a challenge by nonprofit religious employers to the Obamacare regulation.

After his court declined to rehear the case, Gorsuch joined a dissenting opinion noting that there was no support for the claim that “a person’s free exercise was not substantially burdened when a significant penalty was imposed for refusing to do something prohibited by the person’s sincere religious beliefs (however strange, or even silly, the court may consider those beliefs).”

In countless other cases—including some brought by inmates seekingaccommodations of their religious beliefs—Gorsuch has carefully examined free exercise claims, ruling in favor of individuals with sincerely held religious beliefs.

We expect him to continue to advocate religious liberty for all Americans.

At the confirmation hearing, Neal Katyal, President Barack Obama’s acting solicitor general, said it best:

Right about now, the public could use some reassurance that no matter how chaotic our politics become, the members of the Supreme Court will uphold the oath they must take: to ‘administer justice without respect to persons, and do equal right to the poor and to the rich.’ I am confident Neil Gorsuch will live up to that promise.

So are we.

This piece originally appeared in The Daily Signal

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