Finding clues of the high court’s future in Gorsuch’s record

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Supreme Court Nominee Judge Neil Gorsuch meets with Senator Cory Gardner (R-CO) on Capitol Hill in Washington, U.S., February 1, 2017. REUTERS/Joshua Roberts - RTX2Z75T

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MILES O’BRIEN: Now, for a closer look at the man who could shape the conservative direction of the U.S. Supreme Court for decades to come.

A national TV audience looked on last night as Judge Neil Gorsuch summed up his judicial philosophy.

NEIL GORSUCH, Supreme Court Nominee: It is the role of judges to apply, not alter, the work of the people’s representatives. A judge who likes every outcome he reaches is very likely a bad judge.

MILES O’BRIEN: Gorsuch was schooled at Columbia University, obtained a Harvard law degree, and then a degree at Oxford. He clerked for then-Justice Byron White and Justice Anthony Kennedy, who still serves on the court. And he practiced law privately before joining the Department of Justice.

Then, in 2006, President Bush nominated him to the 10th Circuit Court of Appeals based in Denver. He won unanimous Senate confirmation. In the decade since, Gorsuch has made his mark in several notable cases, especially on religious liberty. He sided with the Hobby Lobby challenge to Obamacare, ruling for religious organizations opposing a contraceptive mandate.

In that decision, Gorsuch, along with two other judges, wrote: “For some, religion provides an essential source of guidance, both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability.”

If confirmed, Gorsuch would fill the seat of the late Antonin Scalia. Last night, Gorsuch called Scalia a lion of the law. Now, at age 49, Gorsuch has a chance to bring that same legal philosophy to bear for decades to come.

And to dig into what we know about that legal philosophy, we are joined by two longtime Supreme Court watchers, Nina Totenberg, legal affairs correspondent for NPR, and Marcia Coyle, chief Washington correspondent for The National Law Journal and a NewsHour regular.

Thank you both for being with us.

Nina, let’s begin with you.

We will look at a landmark case, the Hobby Lobby case, which gets into religious freedom, rights of employers vs. employees. That’s a real shorthand version of it.

I’m going to read you a little passage from a ruling that was authored by him in a lower court, obviously.

He says this: “It is not for secular courts to rewrite the religious complaint of a faithful adherent, or to decide whether a religious teaching about complicity imposes too much moral disapproval on those only indirectly assisting wrongful conduct.”

So, in this case, what happened as a result is that a small, closely held company wasn’t forced, as part of the Affordable Care Act, to provide birth control to its employees.

What can we read into that as far as it might relate to other rulings, which would come to the high court?

NINA TOTENBERG, NPR: This was a dissent that Gorsuch authored, and he was vindicated by a 5-4 vote on the Supreme Court.

And what those who are concerned about his nomination would say, I think, is that, if you apply this rationale to, for example, gay rights, you could imagine that, very easily, that he would side with business owners who don’t want to serve gay people, business owners who might not want to employ gay people, despite laws to the contrary.

It could involve lots of different kinds of civil rights laws. And that is really the tension here that is going to provoke a considerable debate.

MILES O’BRIEN: Marcia, obviously a big issue, is there a specific case in the pipeline that we know of that might rise to the level of the Supreme Court that might test his feelings on this?

MARCIA COYLE, The National Law Journal: Absolutely.

In fact, there’s a case pending in the court — the court hasn’t decided whether to take it up or not — that involves a bakery that didn’t want to bake a wedding cake for a same-sex couple. And the claim here is that to do so would violate their religious beliefs.

So, this is something that civil rights organizations are concerned about. There have been other cases around the country involving photographers who wouldn’t photograph a same-sex wedding because of their religious beliefs.

And I think, as Nina just said, Judge Gorsuch’s dissent here does give some concern to these civil rights organizations as to how far you can take not only his comments, but the Supreme Court’s Hobby Lobby decision.

MILES O’BRIEN: Everybody is curious about Roe v. Wade, of course, Nina.

Haven’t seen anything where he has weighed in, in this realm. But he did write a book in 2006 on euthanasia and assisted suicide, very much opposed to it. Can we interpret anything out of that book and his philosophy there and apply that to how he might interpret the law? What do you think?

NINA TOTENBERG: Well, in the book, he talks about the value of human life, but, at the same time, he makes the argument that individuals should be able to refuse treatment even if it leads to their death.

I don’t think you can say he’s written on point in any legal decision about this. Certainly, his vote will not make the difference, as long as the rest of the members of the court remain the same. It will still be a 5-4 vote upholding Roe, or the core of Roe, as the court put it.

And just this year, we saw Justice Anthony Kennedy write — be the fifth and decisive vote in a case that struck down the newest wave of attempts to limit access to abortion. And as long as he’s there and the other members of the court remain the same, it’s not going to change.

But if he leaves or Justice Ginsburg, who is almost 84, leaves, or if Justice Breyer, who is 78, leaves, it will make a difference. And then that would open the door. At that moment, a second Trump nominee would open the door to the possibility of reversing Roe.

MILES O’BRIEN: Marcia, would you concur with that?

MARCIA COYLE: I would. I think his book is a very heavily researched, very nuanced approach to the issue of assisted suicide.

And I think, as Nina said, he comes down on personal autonomy, but doesn’t seem to favor government legalizing assisted suicide. And definitely in terms of the politics of the court on Roe v. Wade, his vote will not make a difference right now. The next — if the next justice leaves, particularly Justice Kennedy or someone on the left side of the bench, then we could face an overturning of a 44-year-old precedent.

MILES O’BRIEN: So, Nina, with all that in mind, what is the strategy from the Democrats’ side of the Senate as it approaches this nomination?

NINA TOTENBERG: Well, it’s a rather exquisite calculus that they have to make, because they don’t have the votes to prevail, at least at the moment. Let’s assume that there’s a — the confirmation hearing is uneventful, relatively speaking, and we are where we are today.

Well, I imagine most Democrats are going to vote against this nominee, but they don’t have the votes to defeat him outright. Then the question is, do they filibuster? Well, if they filibuster, the Republicans could, as say they, go nuclear, and abolish the filibuster rule for Supreme Court nominees.

And what they’re really worried about, I suspect, is not this nomination, but the next nomination, which could change the balance of the court for generations to come. At the same time, though, Democrats in the Senate are under enormous pressure from the left flank and from their own constituents in the Democratic Party who are out in the streets, who are outraged by everything that has gone on in the last two weeks, the first two weeks of the Trump administration.

And in much the way that the street, the Republican street led the Republican Party in the election this year, the Democratic street is leading the Democratic Party in the Senate.

MILES O’BRIEN: Marcia, are they going to go nuclear?

MARCIA COYLE: I don’t know. I’m not sure they have a coherent strategy at the moment.

I think, sometimes, we also put too much emphasis on the abortion issue. I’m sure the Democrats and their supporters, the marchers who were here during the Women’s March on Washington, there were many other issues that they see that may be coming to the Supreme Court as a result of President Trump’s executive orders, and perhaps future actions as well.

And so the stakes are — in terms of the Supreme Court, are much higher than just abortion. And I also sense there is still a lot of anger on the Democratic side of the Senate in the way that President Obama’s nominee was treated, Judge — Chief Judge Merrick Garland. There’s some sentence of wanting to have payback for that.

But we have to wait and see.

NINA TOTENBERG: I have to say that I have talked to a lot of Democrats today, and my sense is that the — on all of these issues, their constituents are more angry than they are, and they were pretty mad about the way Merrick Garland was treated in their view. They were furious, but not as furious as their constituents are.

MILES O’BRIEN: Nina Totenberg, Marcia Coyle, two of the best court watchers in the land, thank you both very much.

MARCIA COYLE: My pleasure.

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