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By A. Tianna Scozzaro
The Judiciary Committee confirmation hearings for Supreme Court nominee Neil Gorsuch began this week, but the jury is still out on whether the judge will be confirmed.
Since being nominated, legislators and voters have raised concerns about what Gorsuch's potential confirmation could mean for women's rights, especially since his record shows a history of voting against women's interests.
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The U.S. Senate is beginning the confirmation process today to consider Judge Neil Gorsuch to the U.S. Supreme Court. Gorsuch, nominated by President Trump on Jan. 31, is now a jurist on the 10th U.S. Circuit Court of Appeals in Denver.
Senators will be making their opening statements, with Republicans expected to say that he will be fair-minded on all issues, including those pertaining to the environment by pointing to what they consider an even-handed record. Democrats, though, will be asking targeted questions of the would-be Supreme Court jurist, especially about his thinking on the carbon-cutting Clean Power Plan that now awaits a decision at the appeals court level.
What could happen? "I'm willing … to say, that he's going to come at these things neutral and if he doesn't think an agency's interpretation is credible he's going to say so," Pat Parenteau, a professor at Vermont Law School, told the Associate Press. "Sometimes that's going to cut in favor of the environment and sometimes it's going to cut against the environment and I don't know how much of that concern actually weighs into his decision making."
What cases might environmentalists look at to get a keener insight into Judge Gorsuch's legal mindset? One of the most recent and hotly contested consisted of a Colorado state mandate requiring investor-owned utilities get 30 percent of electricity they sell from renewable sources by 2020—a law that Gorsuch voted to uphold.
According to Heavy:
In 2015, on a three-judge panel, Gorsuch affirmed that Colorado's renewable energy law would remain in place and did not violate the Constitution. The plaintiff had advocated for a free market approach to environmentalism and argued that the law violated the Commerce Clause and unfairly hurt out-of-state businesses, such as coal producers.
Conversely, according to the AP, Gorsuch sided with business interest in a 2010 case in which the U.S. Environmental Protection Agency (EPA) had classified land in New Mexico as Indian territory when a company had wanted to explore there. Gorsuch said that the land in question was not actually on an Indian reservation and thus ruled in favor of the mining company.
By way of background, Neil Gorsuch is the son of Ann Burford Gorsuch, who led the EPA from 1981 to 1983 when President Reagan was in office. Environmentalists had been critical of her back in the day, saying that she had failed to tackle cases important to their cause and that she had tried to loosen existing regulations that had been meant to reduce pollution.
To that end, Democratic senators have expressed concern that Judge Gorsuch naturally favors the interest of big business. Senators worry that this would come at the expense of the environment as well as the most vulnerable Americans.
"The highest court in the land should be reserved only for those who believe that a democracy works for the people—not corporations," Michael Brune, executive director of the Sierra Club, said in a statement. "Unfortunately but not unsurprisingly, Donald Trump's nominee, Neil Gorsuch, does not subscribe to this belief as evidenced by his long record of anti-environment, anti-women and anti-worker decisions."
Progress Now in Colorado believes that the nominee would set back environmental policy. Meantime, NextGen Climate President Tom Steyer said that, when Gorsuch was nominated, the U.S. Senate had owed "no deference" to Trump, who lost the popular vote. "The Supreme Court is one of the last lines of defense at this perilous time for our country," Steyer added.
Environmentalists, for example, point to the Chevron Doctrine, which is encompassed in the case of Chevron U.S.A., Inc v. NRDC. Simply, courts will defer to the federal agencies that have thoroughly analyzed a policy. But green groups, pointing to an earlier immigration case, are fearful that the Supreme Court nominee would give short shrift to the doctrine. That's because it is often associated with EPA regulations.
"It gives them broad authority to regulate certain pollution and it leaves it up to the experts to determine exactly what threshold of pollution is acceptable and what threshold is dangerous," Billy Corriher of the Center for American Progress said, according to the AP. "Judge Gorsuch would want to get rid of that standard and basically allow judges to substitute their own judgment for the judgment of the agency experts."
While some of the high court's current judges have criticized the doctrine—notably Justice Clarence Thomas—it has, in effect, served as a check on judicial activism, Kenneth Reich, an environmental and energy lawyer in Boston, said in an earlier interview. That's particularly relevant with regard to statutes that require a precise expertise—knowledge that the judges cannot possibly have.
The Clean Power Plan is a case-in-point. In 2007, the Supreme Court ruled that carbon dioxide is a pollutant that could be regulated under the Clean Air Act—something that EPA made official in 2009, saying it was a danger to public health and welfare. And in 2014, the high court upheld that so-called endangerment finding. That ruling is the foundation behind President Obama's Clean Power Plan.
But in February 2016, the Supreme Court issued a "stay" to address some concerns of several states before sending the case back to the DC Court of Appeals, where a decision is expected soon. No matter how it rules, it will head back to the high court, which is now evenly split on the Clean Power Plan. The question many are asking is just how would Gorsuch decide and would he respect the Chevron Doctrine?
President Donald Trump's nomination of Judge Neil Gorsuch to the Supreme Court has been criticized by environmental groups and human health advocates, who fear that the conservative judge would side with corporations, limit the federal government's regulatory responsibilities, and gut environmental and health protection if confirmed.
The 49-year-old federal appeals court judge from Colorado has been described as an "heir" to the late Justice Antonin Scalia, whose seat Gorsuch would be filling.
During his announcement Tuesday, Trump praised Gorsuch for being a principled constitutionalist. "Judge Gorsuch has a superb intellect, an unparalleled legal education, and a commitment to interpreting the Constitution according to its text," Trump said.
Gorsuch said in the East Room, "I pledge that if I am confirmed I will do all that my powers permit to be a faithful servant of the Constitution and laws of this great country."
Several news outlets have noted that his mother, Anne Gorsuch Burford, served as U.S. Environmental Protection Agency (EPA) director under President Ronald Reagan. She has been accused of wanting to dismantle the agency and notoriously resigned under fire after serving 22 months in the administration over mismanagement of a $1.6 billion program to clean up hazardous waste dumps.
Earthjustice, the nation's largest environmental law organization, is calling on the Senate to reject Gorsuch as Supreme Court Justice, citing his history of rulings against workers' rights, that he's a friend of big business, that he has shown hostility to the rights of the disabled and that he has protected police officers charged with excessive force.
Gorsuch is perhaps best known for the case, Hobby Lobby Stores, Inc. v. Sebelius, in which he agreed with the majority opinion that corporations are persons and should not be required to pay for contraceptive coverage under the Affordable Care Act.
Earthjustice noted that Gorsuch favors limits on federal regulatory power:
- Gorsuch is opposed to the Chevron doctrine, which emerged from the landmark Chevron v. Natural Resources Defense Council decision of 1984, and held that federal agency experts must have the authority to determine how their regulations should be carried out.
- Gorsuch believes judges should get to overrule agency experts when deciding how to enforce federal regulations. Even the late Supreme Court Justice Antonin Scalia agreed with the Chevron doctrine.
"Gorsuch has a lengthy record of decisions that seek to benefit corporations and restrict the federal government's regulatory responsibilities. His decisions also reflect a history of limiting the rights of women, the disabled, workers, and many others," said Earthjustice President Trip Van Noppen.
"A review of Gorsuch's writings and decisions indicate that he would seek to overturn well-established Supreme Court precedents and prevent the federal government from enforcing bedrock environmental laws such as the Clean Air Act and Clean Water Act," Van Noppen said. "Gorsuch's record suggests he would take the court in a far-right direction doing irreparable harm to the health of communities, while failing to protecting wildlife, our public lands and restricting efforts to combat climate change."
The international climate campaign 350.org called Gorsuch "a friend of big polluters and a foe of workers, the disabled and the environment."
"With Trump torching the Constitution and the climate, now isn't the time to approve an extreme Supreme Court nominee. Gorsuch is a friend of fossil fuel companies and a foe of workers, the disabled, and the environment," said 350.org Executive Director May Boeve. "Millions of people are marching in the streets to resist Trump's radical agenda and our counting on their Senators to join them. This couldn't be a clearer test of whose side politicians are really on."
Greenpeace USA Executive Director Annie Leonard expressed similar sentiments.
"Neil Gorsuch, empowered by spineless Congressional Republicans and an incompetent and malicious Trump administration, could inflict serious damage to people in this country," Leonard said. "We need the U.S. Supreme Court to protect the people's rights to live free, safe and equal lives and to uphold federal laws like the Clean Power Plan which help ensure our right to survival and limit the human and environmental impact of climate change."
"There is no evidence in Gorsuch's track record that indicates he would be a champion for these legal protections, but an abundance of evidence indicates that he would be a champion for corporate protections," she added. "With this Supreme Court nomination, political forces like the Heritage Foundation and the Koch Brothers are applauding a step towards a democracy powered by the wealthy."
The Center for Biological Diversity said that based on Gorsuch's track record, he will consistently rule in favor of wealthy corporate interests at the expense of environmental safeguards, civil rights and social justice.
Kierán Suckling, executive director of the Center for Biological Diversity, also pointed out that Trump's pick for the Supreme Court was made possible only by the extraordinary, unprecedented, year-long blockade by Senate Republicans of President Obama's pick of DC Circuit Judge Merrick Garland.
"We should never forget that this was a stolen seat," Suckling said. "Gorsuch should be filibustered, and every Democrat of conscience should vote against his confirmation. Putting him onto our highest court could inflict incredible, irreversible damage upon our nation's natural heritage."
The Sierra Club, which joined a rally against Trump's pick on the steps of the Supreme Court on Tuesday, has also opposed the pick.
"As the highest court in the country, the Supreme Court must be composed of justices that are fair, even-handed, and thoughtful," Sierra Club Executive Director Michael Brune said. "Unfortunately, Judge Gorsuch, Donald Trump's choice to fill the vacancy on the Supreme Court, is none of those things and must be rejected. Gorsuch has proven himself hostile to environmental protection, women's rights, and the rights of workers and cannot be trusted to protect our air, our water, or our communities.
"The Supreme Court has the responsibility of deciding on the cases that protect everything from our clean air and water to our civil rights and liberties. Gorsuch is not fit for that responsibility. Gorsuch has shown he will prioritize his warped ideological views instead of using our Constitution as a guide. His dangerous views favor polluters and industry over the rights of the people. His record shows that he will limit the access of everyday Americans to the courts and prevent agencies like the EPA from fulfilling their mission and doing their job to protect our air, water, and health. He's even been described as more extreme than Justice Scalia."