Neal Katyal has advice for liberals on Donald Trump’s Supreme Court nomination, and he speaks as one of them. Barack Obama’s acting Solicitor General knows that Democrats are still sore over Republican obstruction of Merrick Garland as Antonin Scalia’s successor, whom Katyal calls “perhaps the most qualified nominee ever,” but they’ll eventually need to confirm someone. If so, Katyal argues, they’d better pick Neil Gorsuch — and not just because whatever follows him might be worse:
There is a very difficult question about whether there should be a vote on President Trump’s nominee at all, given the Republican Senate’s history-breaking record of obstruction on Judge Merrick B. Garland — perhaps the most qualified nominee ever for the high court. But if the Senate is to confirm anyone, Judge Gorsuch, who sits on the United States Court of Appeals for the 10th Circuit in Denver, should be at the top of the list.
I believe this, even though we come from different sides of the political spectrum. I was an acting solicitor general for President Barack Obama; Judge Gorsuch has strong conservative bona fides and was appointed to the 10th Circuit by President George W. Bush. But I have seen him up close and in action, both in court and on the Federal Appellate Rules Committee (where both of us serve); he brings a sense of fairness and decency to the job, and a temperament that suits the nation’s highest court. …
I have no doubt that if confirmed, Judge Gorsuch would help to restore confidence in the rule of law. His years on the bench reveal a commitment to judicial independence — a record that should give the American people confidence that he will not compromise principle to favor the president who appointed him. Judge Gorsuch’s record suggests that he would follow in the tradition of Justice Elena Kagan, who voted against President Obama when she felt a part of the Affordable Care Act went too far. In particular, he has written opinions vigorously defending the paramount duty of the courts to say what the law is, without deferring to the executive branch’s interpretations of federal statutes, including our immigration laws.
Not all liberals are listening. Over at Slate, Christina Cauterucci issues a call to man (so to speak) the barricades, accusing Gorsuch of being “hostile to women’s health care,” apparently defined as getting free contraceptives and making the Little Sisters of the Poor pay for them:
Gorsuch, the son of perhaps the most corrupt head of the Environmental Protection Agency in its history, came down on the side of religious zealots in the notorious case of Sebelius v. Hobby Lobby, Inc., in which the craft chain’s owners won the right to deny their employees contraception coverage despite the ACA’s mandate. In the 10th Circuit’s ruling, Gorsuch attributed to the company the capacity for spiritual reverie. The ACA forced Hobby Lobby to “violate their religious faith” by covering birth control, which “their religion teaches to be gravely wrong.” Gorsuch described birth control drugs and devices as having the effect of “destroying a fertilized human egg”—a claim that is demonstrably false, even in most cases of emergency contraceptive use.
Gorsuch also joined a dissenting opinion when Little Sisters of the Poor v. Burwell, another challenge to the ACA’s contraceptive mandate, came before the 10th Circuit. The dissent called the mandate a burden to the plaintiffs’ free exercise of religion. In a 1996 amicus brief in a case about physician-assisted suicide, Gorsuch wrote that requiring public hospitals to provide abortions was an instance of “the courts [feeling] free to override the conscience of health care providers.” In other words, Gorsuch believes that doctors, corporations, and individuals should be able to discriminate against women, preventing them from accessing necessary health care, on account of any personal whim they claim to the court.
It’s worth noting that all of these issues played out in the general election. In fact, Democrats from Hillary Clinton all the way down the ticket campaigned explicitly on eliminating the Hyde Amendment so that federal dollars could go to Planned Parenthood explicitly to subsidize abortions, apart from defending the federal subsidies they already receive. Donald Trump repeatedly cited the Hobby Lobby and Little Sisters cases as examples of runaway regulation that infringed on free exercise of religion. Hillary Clinton and the Democrats wanted to expand ObamaCare, the platform that created the issues with Hobby Lobby and the Little Sisters; Donald Trump and the Republicans wanted to repeal ObamaCare. How did the election turn out for Democrats — and not just at the presidential level? Poorly, as I recall.
Elections have consequences. So do extreme arguments and positions, both in an electoral context and outside of it. Katyal understands that, but don’t bet on most of his allies on the port side of the political boat to follow him rather than the exhausted extremism of Slate.