OPINION | ELIZABETH WARREN
WHEN JUSTICE Antonin Scalia died last year, giant corporations and their right-wing buddies spent millions of dollars to keep the Supreme Court seat open so that Donald Trump could fill the vacancy. It was only the latest step in their campaign to tilt our courts in favor of big corporations and the wealthy. Now, the nomination of Judge Neil Gorsuch to the Supreme Court is their reward. Anyone who believes in a neutral Supreme Court guided by equal justice for all should oppose this nomination.
Over the past three decades — as the rich have gotten richer and middle-class families have been left behind — the scales of justice have been weighted further and further in favor of the wealthy and the powerful. That tilt is not an accident. It’s the result of a deliberate strategy by powerful interests to turn our courts over to the highest bidder.
Its effects have been devastating. Recent court decisions have let giant corporations that cheated their consumers off the hook, unleashed a flood of secret money into the political process, and made it easier for businesses to abuse and discriminate against their employees.
At the core of this strategy is an all-out attack on fair-minded, mainstream judges. A prime example is the unprecedented blockade of Judge Merrick Garland’s nomination to the Supreme Court — a consensus nominee praised by Republicans and Democrats alike as a thoughtful, intelligent, and fair judge. None of that mattered for powerful right-wing groups that decided that Garland’s record did not reflect a sufficient willingness to bow down to the interests of the wealthy few. So they poured millions into a public smear campaign to stop his confirmation and leave the seat open.
During his campaign, Trump promised to nominate a Supreme Court justice selected exclusively from a list drawn up by far-right groups with ties to these same wealthy interests. As president, Trump kept that promise when he nominated Gorsuch last month to fill the vacancy.
Even before his elevation to the bench, Gorsuch’s right-wing, pro-big business views were clear. For example, he wrote an article arguing that liberals are too addicted to the court system and should keep important social issues like gay marriage, physician-assisted suicide, and school vouchers out of the courts. Notably absent was a similar critique of conservatives who pursue their interests in the court system. And Gorsuch has advocated for making it harder for investors and shareholders to bring lawsuits when companies commit securities fraud.
On the bench, his judicial decisions show a remarkable ability to shape and re-shape legal arguments in ways that benefit large corporations and disadvantage ordinary people seeking justice. In the Burwell v. Hobby Lobby Stores case, when he had to choose between the “rights” of corporations and the rights of women, Gorsuch sided with corporations. In consumer protection cases, when he had to choose between the “rights” of corporations and the rights of swindled consumers, Gorsuch sided with corporations. In discrimination cases, when he had to choose between the “rights” of corporations and the rights of employees to be free from harassment and abuse, Gorsuch sided with corporations.
Gorsuch has taken positions that are even more extreme than his extremely conservative colleagues. When it comes to the rules that protect public health and safety, Gorsuch is more radical than Scalia was. Gorsuch believes that courts should not be required to defer to expert agency interpretations of their governing laws. If he had his way, he’d make it even easier for corporations to challenge health and safety rules that prevent them from polluting our air and water, poisoning our food, undermining public safety, or cheating people out of their hard-earned savings.
Big companies and rich right-wing billionaires are spending top dollar to help a judge like Gorsuch get over the finish line. But that’s not how our court system is supposed to work. Our courts are supposed to be neutral arbiters, dispensing justice based on the facts and the law — not the party with the most money or political power.
Gorsuch is charming and intelligent. He has an impressive legal pedigree. But this is not a Miss Congeniality pageant or a contest for the nominee with the fanciest degrees. This is a vote for a justice who will sit on the highest court in our nation for the next generation and decide cases that will touch every human being in this country. Cases about a woman’s right to choose, voting rights, LGBTQ rights, secret spending in our political system, and freedom of speech and religion. The next Supreme Court justice will help determine whether our courts will serve the interests of all of us or bend to the will of the powerful moneyed few who helped place them on the court.
There is only one question that should guide us in that decision: whether the nominee will defend equal justice for every single one of us — rich or poor, black or white, female or male, gay or straight, popular or unpopular. Gorsuch’s record shows that he is not that nominee.
At a moment when the awesome power of the presidency is in the hands of someone who has shown contempt for our Constitution, our independent judiciary, our free press, and the principles that make our nation a beacon of democracy, this decision is more consequential than at any time in recent history. We cannot stand down when the president of the United States attempts to hand our highest court over to the highest bidder. And that is why I believe Judge Gorsuch’s nomination should be blocked.
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