As Republicans and Democrats draw their battle lines over the nomination of Judge Neil Gorsuch as a Supreme Court associate justice, so do Jewish activists.
Those on the right are encouraged by Gorsuch’s judicial record, which indicates a willingness to allow expressions of religion even at the expense of lowering the wall separating church and state. Liberal Jewish activists look at his opinions on these issues, as well as on those relating to women’s rights, labor and environment, with a mixture of concern and dismay.
At 49, Gorsuch, if confirmed by the Senate, will be the youngest justice on the bench, looking forward to many decades on America’s highest court. Gorsuch, who is Episcopalian, will also be the only Protestant on the court, which is currently made up of five Catholic justices and three Jewish ones.
A Harvard-educated resident of Colorado, Gorsuch comes to the job with all the pertinent credentials. He clerked for Supreme Court justices Byron White and Anthony Kennedy, and now serves on the 10th Circuit Court of Appeals.
His conservative judicial philosophy, though, runs counter to that of the Jewish Supreme Court justices. He is an “originalist” who believes in the literal meaning of the Constitution and holds a strong opposition to judicial activism. Gorsuch’s lengthy judicial record is consistently conservative, close to that of the late Antonin Scalia, whose vacant seat he now seeks to fill.
“He is a fine person, and although I don’t agree with his judicial philosophy across the board, [he is] an exceptionally talented judge,” said Norman Eisen, the former ethics czar in the Obama administration, and Gorsuch’s classmate at Harvard. “He was quite conservative in law school and has maintained those principles since, eloquently so.”
Gorsuch’s rulings on issues relating to the separation of church and state are of special importance to the Jewish community and have set him squarely on the side of those supporting greater religious involvement in public life.
Sitting on the 10th Circuit Court, Gorsuch was involved in two of the most significant religious challenges to Obama’s Affordable Care Act. In the case of Hobby Lobby, a crafts chain whose owners sought an exemption from paying for contraceptives in their workers’ health care plan, Gorsuch supported the owners, the Green family, writing that “no one disputes that the Greens’ religion teaches that the use of such drugs and devices is gravely wrong,” and adding that a requirement from the government forcing them to do so “itself violates their faith, representing a degree of complicity their religion disallows.”
In a similar case, he sided with the Little Sisters of the Poor. “When a law demands that a person do something the person considers sinful, and the penalty for refusal is a large financial penalty, then the law imposes a substantial burden on that person’s free exercise of religion,” Gorsuch wrote in his opinion.
Gorsuch also wrote opinions supporting the display of the Ten Commandments in a public park, and the placement of a memorial in the shape of a cross alongside a highway.
“We’ve looked at his decisions on religious liberty cases, and it is very encouraging,” said Nathan Diament, the Orthodox Union’s executive director for public policy. Diament studied at Harvard Law a year above Gorsuch. “Certainly, for the Orthodox community, there is no issue more important that the Supreme Court deals with than religious liberty,” he said.
But it is exactly these decisions that worry liberal Jewish activists. “We need to be very concerned and to look at this very carefully,” said Rabbi Jonah Pesner, director of the Religious Action Center of Reform Judaism. Pesner noted that when the wall of separation between church and state begins to crumble, “the Jews are the first to suffer.”
Liberal Jews also look at Gorsuch’s broader judicial record and see a nominee who has taken views opposing their own on almost every issue. “Throughout his judicial career, he has demonstrated hostility toward victims of police brutality, and toward women’s right to access reproductive health care. His history of anti-worker rulings and his decisions against attempts to protect the environment are also profoundly troubling and raise serious questions about his ability to rule fairly on our highest Court,” Rabbi Jason Kimelman-Block, director of Bend the Arc Jewish Action, said in a statement. “All of these positions contradict both fundamental American and Jewish values.”
The fate of Gorsuch’s confirmation rests, to a great extent, in the hands of Senate Minority Leader Chuck Schumer. The New York Democrat already announced that he will insist on a 60-vote approval for any Supreme Court nominee, forcing Gorsuch to win over not only all Republicans, but a handful of Democrats as well.
Jewish Democrats believe this requirement is merited, given the Republican’s successful derailment of Judge Merrick Garland, who was blocked from even having a hearing. “That was a senatorial coup. Democratic leadership in the Senate, and all of us Democrats, need to decide what the consequences for that illegitimate action should now be,” Eisen said. “It is too bad that the Senate majority’s misconduct put a cloud over my classmate and an otherwise outstanding nominee.”
Nathan Guttman staff writer, is the Forward’s Washington bureau chief. He joined the staff in 2006 after serving for five years as Washington correspondent for the Israeli dailies Ha’aretz and The Jerusalem Post. In Israel, he was the features editor for Ha’aretz and chief editor of Channel 1 TV evening news. He was born in Canada and grew up in Israel. He is a graduate of the Hebrew University of Jerusalem. Contact Nathan at email@example.com, or follow him on Twitter @nathanguttman