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If Senate Confirms Gorsuch for Supreme Court, Corporate America Wins, Workers Lose

Posted Feb. 8, 2017

MP3 Interview with Elliott Mincberg, senior fellow with People for the American Way, conducted by Scott Harris


After the death of the Supreme Court's staunchest conservative and longest-serving justice, Antonin Scalia on Feb. 13 last year, Republican Senate Majority Leader Mitch McConnell asserted that the nomination of a replacement should wait until after the November 2016 presidential election. In March, President Obama, following the U.S. Constitution, nominated Merrick Garland, chief judge of the United States Court of Appeals for the District of Columbia Circuit to fill the vacancy. As promised, the GOP-controlled Senate blocked a hearing or vote on Garland's nomination, resulting in a Supreme Court short one justice, leading to several 4 to 4 ties between the conservative and liberal wings of the court on key cases.

After President Trump's surprise November election victory, he followed through on his campaign pledge to nominate an individual to the Supreme Court that would be as conservative as Justice Scalia, whom he would replace. On Jan. 31, the real estate billionaire announced his nominee, Neil Gorsuch, a federal appeals judge in Denver, who is well known nationally for taking the side of religious organizations that opposed parts of the Affordable Care Act that compelled insurance coverage of contraceptives. In one of those related cases, Burwell vs. Hobby Lobby Stores, later decided by the Supreme Court, Judge Gorsuch wrote of the need for U.S. courts to give broad latitude to religious beliefs.

To his many progressive opponents, Judge Gorsuch's record indicates that he would be a strong ally of wealthy corporations, challenging laws that protect workers, consumers, and the environment. Between The Lines' Scott Harris spoke with Elliott Mincberg, a senior fellow with People for the American Way, who explains why his group is campaigning to defeat President Trump' nomination of Judge Neil Gorsuch to the U.S. Supreme Court. [Rush transcript.]

ELLIOTT MINCBERG: President Trump said he wanted somebody who would be as far to the right as Scalia, and frankly he's done even better than that, he has found somebody who in some respects, is to the right of Justice Scalia. Judge Gorsuch has a consistent record throughout his judicial career and even his pre-judicial career as a lawyer of strongly favoring corporations at the expense of workers and other ordinary citizens. One of my favorite, unfortunate examples of that was a case involving a corporation that had failed to train a worker. The company had acknowledged that it needed to train workers on this, but this guy started working after the training had happened. Unfortunately, what the training was about was how to avoid problems with high-voltage electrical wires. As a result, this poor worker got electrocuted.

Well, the Department of Labor decided that, there ought to be a fine for this kind of negligent behavior, and in fact, Judge Gorsuch's 10th Circuit Court of Appeals agreed with that, but Gorsuch dissented and wanted to go for the corporation, not for the individual worker. That's just one of a number of cases like that that is throughout Judge Gorsuch's career. He goes further than Justice Scalia because he wants to overturn the so-called Chevron doctrine under which agencies like the Department of Labor, when they make regulations that protect health, safety, etc., generally get deference unless their regulations are unreasonable. Gorsuch wants to eliminate that doctrine completely, for example.

But at the same time, he's particularly dangerous now because of what we've seen recently from President Trump. The immigration order, in particular, which is now being contested. We need judges and justices who will stand up against that kind of action. Right now, the Supreme Court is split 4-4. One justice going the wrong way, could easily see that and many other future orders by President Trump upheld. And again, Judge Gorsuch's record is troubling. For example, in one case – again the majority of the 10ths are good – agreed to stop the governor of Utah from unilaterally defunding Planned Parenthood. Judge Gorsuch dissented and said, essentially, "We should defer to the governor." We don't need a justice who will essentially defer to the president on those kinds of critical issues. Those are just a few examples, but they give you and your listeners an idea of what is so troubling about Judge Gorsuch.

BETWEEN THE LINES: Elliott, maybe you can speak to what strategies are being discussed among Senate Democrats to oppose this nomination, which most Senate Democrats have put on the record. But of course, they have a minority in the Senate and the filibuster rule – as has been discussed by Republican Majority Leader Mitch McConnell could be done away with in the so-called "nuclear option." What is it that you're hearing the Democratic strategy is here in confronting the nomination of Neil Gorsuch?

ELLIOTT MINCBERG: Well, I think the Democrats so far have done a very good job. There have been – as you already said – a number of expressions of either serious concern or outright opposition by Democratic senators. And Senate Minority Leader (Chuck) Schumer has framed the issue in a very good way. He hasn't talked about a quote-unquote filibuster. What he said is, look, particularly at this time in our history, and given what's going on in the past, any nominee to the Supreme Court should achieve some consensus and should be able to get 60 votes. After all, that was the standard that effectively, all four of the last Democratic nominees were held to. Both the nominees of President Clinton and the two who got votes by President Obama – (Sonia) Sotomayor and (Ellen) Kagan – all got more than 60 votes. So why shouldn't that apply to Gorsuch as well?

Now what happens if the Democrats stand fast? They demand that and the Republicans say, "No! We want to do it by 51 votes, which we can do, we can get every Republican. And we might trigger the nuclear option." Well, two things. First of all, we're hopeful that as more and more senators look at this, we might be able to get a few Republican votes. There have been a few Republican votes, as you know, already against Cabinet nominee (Betsy) DeVos and we're hopeful that we could get a few and maybe a few more with respect to the Supreme Court, which is, after all, a lifetime appointment, not just for President Trump's administration.

But second, what we're also hearing, even this early is that even among senators who are likely to support Judge Gorsuch, they are very reluctant to trigger this nuclear option to eliminate the possibility of a filibuster of a Supreme Court nominee, because when a Democrat's in the White House, they want to see that threshold met as well. So we're very hopeful that even if they will not oppose Gorsuch, we will see all we need is three Republican senators because they do need 51 to trigger it who will be unwilling to trigger the nuclear option. And frankly, if they do trigger it, the American people need to see that and see just what's happened and how dangerous the Republicans in the Senate are.

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