Neil Gorsuch, a conservative jurist “in the tradition of the late Antonin Scalia”, according to his White House supporters, was confirmed as Scalia’s replacement on the high court Friday, after Senate Republicans passed an unprecedented rulemaking change.
The Senate awarded Gorsuch 54 votes, all but three from the GOP, to give President Trump the 5-4 conservative majority he promised his constituents. Gorsuch, 49, who clerked for Supreme Court judges Byron White and Anthony Kennedy in the 1990s, had his path cleared before the 2016 election, by Senate leader Mitch McConnell who blocked President Obama’s nominee, Merrick Garland, from ever getting a confirmation hearing. “My proudest moment,” McConnell later boasted, “was when I looked Barack Obama in the eye and said, ‘Mr. President, your nominee will not be confirmed’.”
Gorsuch’s accession to the highest court in the country presages turbulence for LGBT rights in American jurisprudence. The judge is a constitutional “originalist”, that is, he believes the Constitution should be interpreted as the Framers worded it in the 1780s, regardless of modern social or cultural changes.
Nevertheless, legal experts say he diverges from such a strict reading when it comes to LGBT cases. During his confirmation hearing, Gorsuch said the landmark marriage equality case, Obergefell v. Hodges, was “settled law”, the jurist expressed a different view in 2005.
Writing in the right-wing National Review, Gorsuch declared, “American liberals have become addicted to the courtroom, relying on judges and lawyers, rather than the ballot box, as the primary means opf effecting their social agenda, including gay marriage. Liberals can only win victories on gay marriage when preaching to the choir, before like-minded judges in Massachusetts.”
Gorsuch takes an even dimmer view of transgender rights, ruling against a trans prisoner’s Eight Amendment case. The plaintiff argued that the prison where she was housed violated the provision against cruel and unusual punishment by denying her adequate hormonal medications, forcing her to wear male clothing, and housing her in an all-male facility.
Gorsuch held that forcing the woman to wear male clothing “bears a rational relation to legitimate penal interest”–that is, says legal analyst Sheldon Green, “making denial of her gender identity a part of her punishment.”
Gorsuch also ruled against another transgender woman, Rebecca Kastl, who sued her employer over bathroom usage conforming to her gender identity. The employer won, with Gorsuch ruling that the defendant had proven its “legitimate reason” for Kastl’s treatment, citing “safety concerns.”
Green sharply disagreed with Gorsuch’s logic, saying, “irrational fears do not constitute a basis for law.” Former Lambda Legal Executive Director Kevin Cathcart concurred, noting that “Gorsuch will not be a judge whose decisions are favorable to the LGBT community.”
Gorsuch is scheduled to be sworn in Monday afternoon.