It is with the advice and consent of the U.S. Senate that will determine if Judge Neil McGill Gorsuch ascends to this nation’s highest Court. The seat was left vacant with the death of Justice Antonin Scalia. While Merrick Garland, the nominee of President Barack Obama, was passed over by a Republican-controlled Judiciary Committee, the effort to place the Republican nominee on the Court is in sight.


Gloria J. Browne-Marshall

The controversy behind the scenes is enormous. President Donald Trump pledged during his campaign that his nominee to the Court would be a conservative who would overturn Roe v. Wade, the case that legalized abortion. Gorsuch, 49, a conservative, is an appellate judge who currently sits on the U.S. Court of Appeals for the Tenth Circuit in Colorado.  

Gorsuch was questioned by Democratic members of the Senate Judiciary Committee at his confirmation hearing about his ties to a conservative agenda. Current White House Chief of Staff Reince Priebus, who led the Republican National Committee, said that the appointment of Gorsuch will change forty years of law. Sen. Al Franken (D-Minn.), who sits on the Judiciary Committee, confronted Gorsuch at the hearing with the promise, allegedly made by White House Chief Strategist Steve Bannon, to select appointees to “deconstruct the government.”

Gorsuch is the the son of Anne Gorsuch Burford who was the first leader of the Environmental Protection Agency and resigned in 1983 after questions arose about corporate influences on environmental regulations.  She was cited for contempt of Congress, according to the {New York Times}, when she refused to provide documents demanded by a subcommittee of the House of Representatives on an investigation of the alleged mismanagement of a toxic waste cleanup.

Despite Trump’s populist campaign promises he chose Gorsuch, an elitist, over appellate Judge Thomas Hardiman of Pennsylvania, who was from a working-class family background and known to have driven a taxicab to pay for law school. Gorsuch, however, attended Oxford University, Harvard College and Harvard Law School. He clerked for Supreme Court Justices Byron White and Anthony Kennedy as well as Judge David Sentelle of the D.C. Court of Appeals, all conservatives.

At the confirmation hearing, Sen. Sheldon Whitehouse (D-R. I.) cited a dozen Supreme Court cases with 5-4 decisions involving Republican-nominated conservative justices who voted in favor of corporations. As in the controversial case of Citizens United v. FEC where Federal campaign regulations were struck down by conservative justices who found corporations could spend freely on political campaigns as part of their freedom of speech.

The American Bar Association gave Gorsuch its highest rating deeming him ‘very qualified.’ However, Sen. Whitehouse made it clear that Judge Merrick Garland “was even more qualified.”

Democrats have found Gorsuch difficult to pin down due to his humor and restrained demeanor. When asked how he would respond to Trump’s demands, Gorsuch said, “When I became a judge they gave me a gavel and not a rubber stamp.” But, Sen. Al Franken looked beyond Gorsuch’s statement of judicial independence and suggested that conservatives chose only those nominees willing to follow their agenda.

Democrats may choose to filibuster the vote. If Republicans cannot reach the 60 votes need to overcome a Democratic filibuster than Sen. Chuck Grassley (R-Iowa), chair of the Judiciary Committee, may ask for a simple majority vote. Republicans want to secure Gorsuch’s confirmation in time to rule on Trinity Lutheran Church v. Comer case because Gorsuch could be the fifth vote conservatives need in that case, which involves separation of church and state.


Gloria J. Browne-Marshall is an associate professor of Constitutional Law at John Jay College (CUNY). She is a playwright, the author of several books most recently “The Voting Rights War,” and a syndicated legal correspondent for ANNIC (African-American News & Information Consortium).