Last night President Trump nominated Judge Neil M. Gorsuch, a Denver-based federal appeals court judge, to fill the vacant seat on the U.S. Supreme Court left open last year by the death of Justice Antonin Scalia. During his campaign, Mr. Trump promised to nominate a conservative judge in the mold of Justice Scalia and, with the nomination of Judge Gorsuch, appears to have fulfilled that promise. We expect the Court will address many critical issues facing women and workers in the coming years including reproductive rights, employment discrimination, union rights, and immigrants’ rights. It is crucial that the next justice work to ensure the full protections of the law for all workers.
As civil rights advocates, we are alarmed by Judge Gorsuch’s 2005 essay, “Liberals’N’Lawsuits,” in which he expresses ideological opposition to impact litigation brought to vindicate the constitutional rights of vulnerable groups. He argues that the judiciary should be reserved for “extraordinary cases,” and suggests that cases bearing on LGBT rights, among others, are not “extraordinary.” Indeed, in a 2015 case, Druley v. Patton, Judge Gorsuch rejected the notion that transgender individuals are constitutionally protected against state-sanctioned discrimination. Yet in the 2013 Hobby Lobby case, Judge Gorsuch sided with business-owners who claimed that their right to religious freedom permitted them to block employees’ access to contraception insurance coverage, even though federal law required them to provide this coverage. (The Supreme Court later accepted this argument in a majority that included Justice Scalia.)
Judge Gorsuch also authored an opinion rejecting a claim of pay discrimination by two maintenance workers who alleged they were transferred to lower-paying jobs based on their age. Although the 2009 Lily Ledbetter Fair Pay Act was intended to make it easier for employees to challenge pay discrimination, Judge Gorsuch interpreted the law narrowly, writing that the law did not protect the plaintiffs because it applies only to “unequal pay for equal work…nothing more, nothing less.”
We urge the Senate to investigate Judge Gorsuch’s record thoroughly, and consider the impact of these issues, as it evaluates his fitness to serve on our nation’s highest court.