5 Issues to Watch at Neil Gorsuch’s Confirmation Hearing

The new Court is poised to interpret law on pivotal issues — from voting rights, to digital privacy and surveillance, to campaign finance, to the laws that protect minority citizens, and more.

March 20, 2017

Cross-posted at The Huffington Post.

President Trump has put forward Neil Gorsuch to be the next U.S. Supreme Court Justice. The choice follows Senate Republicans’ refusal to consider President Obama’s nomination of Merrick Garland. The new Court is poised to interpret law on pivotal issues — from voting rights, to digital privacy and surveillance, to campaign finance, to the laws that protect minority citizens, and more.

Here are 5 issues to watch on justice and democracy during Gorsuch’s confirmation hearing, which begins Monday:

1. Digital Privacy and Surveillance

Supporters of Judge Gorsuch portray him as an originalist similar to the late Justice Antonin Scalia. If Gorsuch is a truly principled originalist he could potentially play a strong role in protecting our Fourth Amendment rights, which guards against abusive policing and executive authority.

That’s something we need now more than ever, especially as our increasingly digital society has led to a new host of digital privacy issues. Cell phones contain more information about American citizens’ personal lives than ever before, and technological advancements have enabled long-term surveillance at comparatively low costs. What does that mean for Americans’ digital privacy? So far, an individual’s right to digital privacy is one issue the justices have maintained a relatively unified voice on. Two recent cases, U.S. v. Jones and Riley v. California, portray the Supreme Court’s strong stance on upholding Fourth Amendment rights in the digital era. Justice Scalia was a compelling voice on issues of digital privacy and choosing a new Supreme Court justice who also defends individual privacy would continue his legacy.

2. Judicial Independence and Executive Oversight

When the courts first heard challenges to the Muslim ban, the Trump administration said the courts did not have the authority to review the president’s executive order because it concerned matters of national security. Trump responded to a federal judge blocking his ban by referring to him as a “so-called judge.”

Gorsuch referred to Trump’s comments as “demoralizing” and “disheartening.” Given this controversy, the Judiciary Committee will likely ask Gorsuch if he is willing to stand up to a president who abuses their power.

Judicial independence is an essential part of our country’s democracy, and vital to the judiciary’s ability to protect individual rights, the rights of minorities, as well as our political institutions. Our country has three co-equal branches of government. But this system only works if the other two branches respect and uphold the rulings provided by federal judges. That is not to say rulings cannot be criticized, but questioning the legitimacy of a federal judge undermines not only the authority of the judge, but also the very essence of the system.

Gorsuch has the chance to explain his views — and assure us he will be a Supreme Court Justice who defends the Constitution, even if that means disagreeing with the president.

3. Money in Politics

Campaign finance is one of the most contentious issues to come before the Supreme Court in recent years. The Court’s 2010 Citizens United ruling, and others, have increased the influence of wealthy donors in our elections by allowing “dark money” spending, super PACs, and unlimited corporate and union expenditures. Super PACs and political nonprofits receive and spend hundreds of millions of dollars more than what any single candidate could directly receive — and these super PACs are often run by former top staffers of candidates they are donating to. In 2016, more than 40 percent of super PAC spending, or $486 million, came from candidate-specific super PACs.

Currently, Judge Gorsuch presides at the Tenth Circuit, which covers Wyoming, Colorado, Utah, New Mexico, Kansas, and Oklahoma. Gorsuch wrote a concurrence for a 2014 case from Colorado concerning campaign finance regulations, Riddle v. Hickenlooper. His concurrence made one thing very clear: Gorsuch understands the complexities and nuances of campaign finance regulations — the exceptions to the exceptions of campaign finance law do not stump him. While his deep understanding of campaign finance law is commendable, his written concurrence and his judicial record suggest that Gorsuch believes the Supreme Court could go even further in rolling back campaign finance laws.

4. Civil Rights

Trump’s selection of Gorsuch could also impact civil rights protections. As a judge and as a lawyer, Gorsuch advocated for making class actions, one of the most effective tools for protecting the rights of marginalized Americans, more difficult for plaintiffs to use against big business. He consistently ruled against employees in cases where they use Title VII to claim workplace discrimination based on race or gender. Most notably, as a judge on the Tenth circuit, Gorsuch ruled the Hobby Lobby craft store could refuse to pay for contraception for employees covered under its health plan based solely on the religious beliefs of Hobby Lobby’s owners. This ruling favored privately held for-profit secular corporations, and the individuals who owned or controlled them, over the rights of female employees.

5. The First Amendment and Freedom of the Press

President Trump has repeatedly talked about “fake news,” and frequently refers to media outlets such as CNN as such. On the campaign trail, Trump promised to “open up our libel laws” to make it easier for officials to sue the media.

Fortunately, in New York Times Co. v. Sullivan, a libel lawsuit, the Supreme Court established strong precedent to safeguard First Amendment rights. The Court ruled the press cannot be held liable for careless reporting practices unless the statement was made with “actual malice” because doing so would run the risk of placing pressure on media outlets and reporters to censor their own work in fear of harsh consequences for journalistic errors.

If Gorsuch is confirmed by the Senate, he would sit on the same court that made New York Times v. Sullivan the law of the land. In 2011, Gorsuch refused to rule against the media in a defamation case, a positive sign. The Senate should ask Gorsuch if he will continue to uphold the rights granted to the press in New York Times v. Sullivan and the First Amendment of the Constitution.

(Image: Flickr.com/BrittanyHogan)