What The Media Ignore When They Call Gorsuch "Mainstream"

››› ››› JULIE ALDERMAN

Some media have called President Donald Trump’s Supreme Court nominee, District Court Judge Neil Gorsuch, “relatively mainstream.” But this label is misleading -- if Trump’s nominee is a “mainstream” conservative judge, it is only because conservative legal thought has shifted to the far right, as The New York Times’ Linda Greenhouse explained. That shift is also reflected in the extreme anti-choice and anti-LGBTQ “originalist” decisions Gorsuch has issued, which have radical impacts that some in the media have downplayed.

Trump Nominates Gorsuch To The Supreme Court

CNN: Gorsuch Could “Cement The Conservative Direction Of The Court For Decades.” President Donald Trump nominated Judge Neil Gorsuch to the Supreme Court on January 31. CNN noted that Gorsuch “could cement the conservative direction of the court for decades”:

President Donald Trump will nominate Judge Neil Gorsuch to the Supreme Court, Trump announced Tuesday night at the White House.

The nomination of Gorsuch, a 49-year-old federal appellate judge from Colorado, gives Trump and Republicans the opportunity to confirm someone who could cement the conservative direction of the court for decades. [CNN, 2/1/17]

NY Times: Gorsuch Would Make The Court More Conservative. An analysis of Gorsuch's record found him to be even more conservative than the late Justice Antonin Scalia, according to The New York Times. According to the authors of the study, Gorsuch “would be a reliable conservative, ‘voting to limit gay rights, uphold restrictions on abortion and invalidate affirmative action programs.’” [The New York Times, 1/31/17]

Media Claim Gorsuch Is Within The Mainstream For A Conservative Justice

MSNBC’s Rachel Maddow: Gorsuch Is “A Relatively Mainstream Choice.” MSNBC’s Rachel Maddow asserted that Gorsuch “is a relatively mainstream choice that you might expect from any Republican president.” From the January 31 edition of MSNBC’s The Rachel Maddow Show:

RACHEL MADDOW (HOST): It seems like the choice of Judge Gorsuch is a relatively mainstream choice that you might expect from any Republican president. [MSNBC, The Rachel Maddow Show, 1/31/17]

CNN’s David Chalian: It’s “Hard” To Call Gorsuch “Outside Of The Mainstream Of Judges.” CNN political director David Chalian claimed that it’s “hard” to call Gorsuch “outside of the mainstream of judges.” From the January 31 edition of CNN Tonight:

DAVID CHALIAN: Selecting this guy, who’s clearly qualified, meets those credentials. Hard to really call him outside of the mainstream of judges. [CNN, CNN Tonight, 1/31/17]

MSNBC’s Kasie Hunt: Gorsuch Is Not Outside “The Establishment Mainstream.” MSNBC reporter Kasie Hunt claimed that Gorsuch “is not somebody … who is outside of the judicial mainstream or the establishment mainstream.” From the February 1 edition of MSNBC’s Morning Joe:

JOE SCARBOROUGH (CO-HOST): How ugly is the fight going to be on the Hill?

KASIE HUNT: I think it's going to be a really tough spot for Democrats, quite frankly, Joe. There was always going to be bad blood because of what happened with Merrick Garland, but leaders were prepared to say, hey, you know what? We want to fight another day. This doesn’t change the balance on the Supreme Court. We’re not replacing a liberal justice. This is not an inflammatory pick. This is not somebody, as you all have pointed out, who is outside of the judicial mainstream or the establishment mainstream, I should say. [MSNBC, Morning Joe, 2/1/17]

McClatchy: Gorsuch “Appears To Fit Within The Judicial Mainstream.” A January 31 McClatchy article stated that Gorsuch “appears to fit within the judicial mainstream.” [McClatchy, 1/31/17]

Newsweek’s Matthew Cooper: “Gorsuch Is A Mainstream Conservative.” Newsweek political editor Matthew Cooper claimed that Gorsuch “is a mainstream conservative” and “isn’t a complete hardliner.” From the January 31 piece:

The great tension in the Donald Trump presidency is whether he’ll appoint widely accepted conservatives or outliers like hardcore nationalist counselor Steve Bannon or conspiracy-minded National Security Adviser Mike Flynn. Neil Gorsuch, his nominee for the Supreme Court—much like Vice President Mike Pence—falls into the former category: He’s very, very conservative but not a total oddball.

[...]

Yet Gorsuch isn’t a complete hardliner.

[...]

Though Gorsuch is a mainstream conservative, the announcement was a reminder that Trump is still very much an outlier in the GOP. [Newsweek, 1/31/17]

But The Conservative Fringe Has Been Pushed To The "Mainstream"

NY Times’ Linda Greenhouse: Gorsuch’s Interpretation Of The Constitution “Has Indisputably Moved From ‘Off The Wall’ To ‘On The Wall’” In Recent Years. New York Times columnist Linda Greenhouse explained that “the constitutional mainstream isn’t static” and pointed out several cases in recent years that moved the court to the right. As Greenhouse wrote, Gorsuch’s embrace of “originalism” was “a fringe notion in 1987,” but now “originalism has indisputably moved from ‘off the wall’ to ‘on the wall.’” From the February 1 column:

Judge Bork was “out of the mainstream” and would “turn back the clock” on civil rights, his opponents charged as they succeeded in marshaling a bipartisan coalition that defeated his nomination with 42 votes in favor and 58 against.

[...]

But just as the Mississippi River changes course over time and redefines the boundary between Mississippi and Louisiana, the constitutional mainstream isn’t static. No participant in the Bork battle could plausibly have maintained, for example, that the Second Amendment protects an individual right to own a gun, as the Supreme Court would decide two decades later. Few if any anticipated the degree to which the First Amendment’s protection for commercial speech would be turned into a powerful deregulatory tool.

The notion that a Supreme Court majority would invoke the Constitution to cut the heart out of the Voting Rights Act of 1965 would have been dismissed out of hand. The idea that the Commerce Clause was insufficient to empower Congress, as an aspect of regulating a national market for health care, to require people to acquire health insurance, would have seemed bizarre; the court had not invalidated a federal law on Commerce Clause grounds since the 1930s. And only a year before the Bork nomination, the Supreme Court rejected as “facetious” the claim that the Constitution prohibits criminalizing consensual gay sex.

Judge Bork’s insistence that the Constitution must be interpreted in light of the original understanding of its authors, a view Judge Gorsuch is said to share, was a fringe notion in 1987.

[...]

But along with the propositions embodied in majority opinions over the past three decades, originalism has indisputably moved from “off the wall” to “on the wall,” to borrow an image from Prof. Jack Balkin of Yale Law School. [The New York Times, 2/1/17]

Talking Points Memo: “The Modern Supreme Court Is The Most Conservative Since The 1930s.” Talking Points Memo’s Sahil Kapur pointed out that the “modern Supreme Court is the most conservative since the 1930s,” adding, “The median justice during the Roberts Court is more conservative than at any time during the last 75 years.” From the June 27, 2012, piece:

The modern Supreme Court is the most conservative since the 1930s.

The median justice during the Roberts Court is more conservative than at any time during the last 75 years, according to a statistical method developed by legal scholars Andrew Martin of Washington University School of Law in St. Louis and Kevin Quinn of the University of California at Berkeley School of Law.

When he was appointed in 1975 by President Ford, Justice John Paul Stevens was considered one of the court's more conservative members. By the time he retired in 2010, he was heralded as its liberal lion.

The high court's rightward trajectory mirrors the broader national shift over the last several decades. President Bush sealed a five-member conservative majority by appointing Chief Justice John Roberts and Justice Samuel Alito. [Talking Points Memo, 6/27/12]

Bloomberg’s Noah Feldman: “Militant Originalism” Was Considered An “Out-Of-The-Mainstream Constitutional Philosophy,” But “Today That’s No Longer The Case.” Bloomberg View’s Noah Feldman pointed out that certain judicial philosophies, such as “militant originalism,” were considered “out-of-the-mainstream” in the 1980s, but now, “that’s no longer the case.” From the January 26 piece:

Senate Minority Leader Chuck Schumer says the Democrats will filibuster any U.S. Supreme Court nominee announced by President Donald Trump next week who’s “out of the mainstream.” The phrase harks back to the Democrats’ success in blocking Judge Robert Bork from the high court in 1987, an event that both gave the world Justice Anthony Kennedy and permanently politicized Supreme Court confirmations. The Republicans could eliminate the filibuster using the “nuclear option,” of course. But Schumer’s threat still poses two crucial questions: What’s the “mainstream” when it comes to judicial practice and philosophy? And would the Democrats be justified in trying to block Trump’s nominee for being out of it?

[...]

In 1987, militant originalism was new enough that it could plausibly be described as an out-of-the-mainstream constitutional philosophy. And Bork was one of its few prophets.

Today that’s no longer the case. Most Republican-appointed judges and a few Democratic appointees would say they’re constitutional originalists. Fewer law professors take this stance, but that’s partly a result of the way the legal academy skews liberal, much like the rest of the academy. [Bloomberg, 1/26/17]

Media Also Downplay The Radical Impact Of Gorsuch’s Pasts Decisions

Reproductive Rights

Gorsuch Ruled To Make It Harder For Women To Access Contraception. As a federal judge on the U.S. 10th Circuit Court of Appeals, Gorsuch ruled in favor or organizations that “challenged the Affordable Care Act’s contraceptive mandate on religious liberty grounds,” according to The Atlantic. [The Atlantic, 1/31/17]

LGBTQ Rights

Gorsuch Denied A Transgender Woman Medically Necessary Hormone Treatments While In Prison. In 2015, according to Lambda Legal, Gorsuch joined an opinion “rejecting arguments made by a transgender woman who was incarcerated that the Oklahoma Department of Corrections had violated her constitutional rights by denying her medically necessary hormone treatment and her request to wear feminine clothing.” [Lambda Legal, 1/31/17]

Gorsuch Criticized Marriage Equality Efforts In The Courts. In a 2005 piece for National Review, Gorsuch criticized “American liberals” for becoming “addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education.” [National Review, 2/7/05]

Rights For The Disabled

Gorsuch Has “Repeatedly Ruled Against The Rights Of Disabled Students.” Right Wing Watch noted that Gorsuch “has repeatedly ruled against the rights of disabled students.” One such ruling, according to the fact sheet, held that “‘a student with autism did not have a right under the federal Individuals with Disabilities Education Act (IDEA) to an education that would provide a chance to achieve intellectual and social skills outside the classroom.’” [Right Wing Watch, 1/31/17]

Environmental Justice

Gorsuch Would Compromise “The Health And Safety Of Our Environment.” According to the Sierra Club, Gorsuch has “dangerous views” which “favor polluters and industry over the rights of the people.” The organization says he would undermine “the health and safety of the environment” by preventing “agencies like the EPA from fulfilling their mission and doing their job to protect our air, water, and health.” [Sierra Club, 1/31/17]

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