From the State House to the Supreme Court: Challenging Abortion, LGBT Rights, and the First Amendment

Having made his way from Harvard to Chief Judge of the Court of Appeals for the District of Columbia, he undoubtedly thought he had reached the highest point in his career. The highest point that any lawyer could even dream of attaining. He achieved public recognition, at the very least in the universe of lawyers, in his investigation and prosecution of Timothy McVey and Terry Nichols, perpetrators of the Oklahoma City bombing. He had reached the pinnacle of his career by the time he reached the bench in the court of appeals. Or so he thought. That is until Justice Antonin Scalia passed away suddenly sometime during the night of February 12/13, 2016.

One month later, President Barack Obama nominated him to serve as an Associate Justice of the Supreme Court. SCOTUS is the holy grail of any good lawyer, without a doubt, and he was within a heartbeat of being there. He never went through the vetting process, never sat before the Judicial committee, and never got to wear the most distinguished robe of a Supreme Court Justice. His name will remain in history as “the Justice who was robbed of his seat.”

Judge Merrick Garland became an unwilling pawn in a political game. In what was an under-handed and unprecedented maneuver in a politically volatile atmosphere, Senate Republicans refused to give Judge Garland what would have been one of his highest achievement.

Judge Neil Gorsuch, another Harvard graduate and a classmate of President Obama’s, was nominated by Donald Trump for Garland’s seat as Associate Justice, the seat that is the tie-breaking decision. Gorsuch was nominated by George W. Bush and appointed to the Court of Appeals in the Tenth District in 2008.

Neil Gorsuch is a textualist, which basically means that he interprets the Constitution as it was written, without regard to any texts, arguments or opinions outside of the law, nor addressing the problem the law was meant to solve. He considers the law AS IT IS WRITTEN; position papers, amicus briefs, petitions, and letters signed by people with vast knowledge of an issue are not helpful in swaying his decisions. Judge Gorsuch is also an originalist. In this mode of thought, he considers the original intent and original meaning of the law at the time it was enacted and he considers the meaning of the words as they were written. In both being a textualist and an originalist, Gorsuch appears, to me, to be a man who doesn’t much consider that the Constitution is designed to bend with the times.

Gorsuch is for corporations and is in favor of Citizens United. He a believer of a broad interpretation of religious freedom. He has written 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. He was among a panel of judges in Hobby Lobby Stores v. Sebelious, which ruled that the Affordable Care Act’s contraceptive mandate on a private business violated the Religious Freedom Restoration Act.

At age 49, Gorsuch could potentially sit on the Supreme Court for 30 years.

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Nominating and appointing hundreds of judges, in particular and of most significance, the possibility of a Supreme Court justice, is a task among the duties of all presidents. It falls on these judges to make decisions on crucial issues that would make or break the lives of women, children, and law-abiding American citizens practicing their constitutional  rights. The subject of judges is always one of the discussions when it’s time to elect a new president, because most judgeships are a lifetime position. The records of every one of these men and women, when nominated, is scrutinized for their position on hot bed issues. Which side they sat on in lawsuits, position papers, decisions made in lower courts, opinions, sometimes down to the essays they wrote in civics class when they were in junior high school. People are looking for clues as to how they will rule in the future. Why? Because the lives of women and children, the LGBT community, and law-abiding citizens practicing their constitutional rights are at stake.

In theory, judges are supposed to be impartial. But we all know this is not necessarily the case. The current Supreme Court is ideologically divided.

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Assemblies and congresses in state capitals all over the country are in a flurry, putting forth bills that are obviously going to be challenged if put onto the books. These Republican controlled Houses are counting on it. These bills, written in a draconian furor, are extremely conservative and are designed to strip away more than a half a century’s worth of progress. They are counting on judges to keep them on the books, no matter the cost to human and civil rights.

The rights of women to decide for themselves whether or not to terminate an unplanned (and sometimes planned but resulting in sorrowful circumstances) pregnancy. The rights of human beings to be who they are, the right to choose who you call your spouse, and even using the bathroom that fits your mind and your appearance are the issues ordinary people have become hyper-aware of in the last few months.

The newest round of glee comes from a desire to do away with the very first right enshrined in the first amendment of the U.S. Constitution, in an effort to make this a Christian country. For those of you who have forgotten basic American history, freedom to practice the religion of one’s choice is at the heart of why we are a country independent of the Church of England. The fact that Puritans were among the first to set foot in the New World has nothing to do with the fact that the issue of being a one religion country was argued at the Constitutional Congress and the results of that argument are thus: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” These are the very first words in the Bill of Rights. The entirety of the First Amendment is under fire; the right to a free press and the right of the people to peacefully assemble, gathering en masse to protest against an ever growing frenzy of oligarchic oppression and corruption are being viscously attacked. Also at risk: the rights to due process, search and seizure, and privacy. And the fundamental right to vote.

States Houses are hedging their bets that these archaic and regressive laws they are endeavoring to enact WILL be challenged and WILL head up the chain, eventually to be argued before 8 people. 

And Neil Gorsuch.