A Republican Justice Settles In as GOP Cheers

      As a Supreme Court nominee, then-Judge Neil Gorsuch assured the Senate Judiciary Committee of his impartiality by saying that there is "no such thing as a Republican judge or a Democratic judge." Americans apparently disagree. Gorsuch's first few months in office have instantaneously raised Republicans' approval of the Court and driven Democrats' approval down to a near record low.
      A Gallup poll taken in the first week of September found that Republicans' approval of the Court had jumped from 26 percent a year ago to 65 percent as approval among Democrats fell from 67 percent to 40 percent. Whether wittingly or not, Gorsuch has fed the partisan reaction to his confirmation with his votes and opinions as justice and ethically dubious public appearances off the bench.
      Most troublingly, Gorsuch allowed Senate Majority Leader Mitch McConnell to take him along as a trophy of sorts as the justice spoke at two law schools last month in McConnell's home state of Kentucky. McConnell was responsible for stealing the Supreme Court seat that Gorsuch now occupies by leading the Republican-controlled Senate in refusing to consider President Obama's nominee for the position, Judge Merrick Garland. McConnell openly boasted of the nakedly partisan maneuver in an earlier home-state appearance by saying that the change in political climate in Washington could be summed up in "three words: Justice Neil Gorsuch."
      Gorsuch again put any concern for the appearance of impartiality off to the side by agreeing to speak to a conservative organization in Washington last week [Sept. 28] at the Trump Hotel. President Trump's financial stake in the hotel raises an issue under the Constitution's Emoluments Clause, an issue that is quite likely to reach the Supreme Court in one or more of the cases now being litigated in federal court.
      With no evident appreciation of the irony, Gorsuch used his appearance before the Fund for American Studies to call for civility in public discourse. “To be worthy of our First Amendment freedoms, we have to all adopt certain civil habits that enable others to enjoy them as well,” Gorsuch declared.
      Gorsuch spoke less than a week after President Trump had used his bullying pulpit to question the patriotism of National Football League players who "take a knee" during the pregame national anthem to protest racial injustice in the United States. Trump went even further by labeling the protesting athletes as "sons of bitches" and urging NFL owners to fire them.
      Gorsuch's host organization is nominally nonpartisan in its goal of promoting "limited government and free-market economics," but it is thoroughly Republican and conservative in its origins and current leadership. The Fund for American Studies was founded 50 years ago by, among others, the godfather of modern conservatism, commentator William F. Buckley Jr. One reporter at last week's luncheon reported that the audience was filled with "the conservative legal firmament."
      Gorsuch has already agreed to a second speaking engagement in November that will amount to a another victory lap for those responsible for putting him on the Supreme Court. Gorsuch will speak in Washington in November to the annual meeting of the Federalist Society, the conservative-libertarian organization that has touted its role in vetting Gorsuch for the Supreme Court seat.
      Writing in USA Today, Gabe Roth, executive director of the reformist organization Fix the Court, complained that Gorsuch's appearance before an audience of "well-heeled conservatives" illustrated the regrettable tendency of justices to “stick to U.S. audiences whose ideologies closely follow their own." Roth noted that in the previous year conservative justices but none of the liberals had spoken to Federalist Society events, while liberal justices but no conservatives had appeared before the progressive American Constitution Society (ACS).
      Roth's evenhanded plea for justices to get out of their ideological cocoons is well taken, but misses an important point. ACS has never played nor claimed a role in judicial appointments comparable to the role that the Federalist Society has played going back as far as the Reagan administration. Trump tasked the Federalist Society and the conservative Heritage Foundation during his campaign with vetting potential Supreme Court nominees. And he marked Gorsuch's confirmation in April by hosting Federalist Society leaders for a celebration at the White House the next day.
      The Gorsuch effect is seen not only in the shifting partisan lines on the Court's approval rating but also in the justices' case-selecting process. With Gorsuch in his first "long conference" last week [Sept. 25], the justices added nine new cases with unusual speed, including one that represents a major financial challenge to a core Democratic constituency: public employee unions (Janus v. American Federation of State, County, and Municipal Employees).
      Gorsuch, son of a Reagan-era Cabinet member, has cheered Republicans from Trump down by lining up with the Court's other archconservatives, Clarence Thomas and Samuel A. Alito Jr., on issues ranging from Trump's travel ban to capital punishment and gay rights. Democrats are left to rue the results of the Republicans' in-plain-sight theft of the seat. As NPR's Nina Totenberg recently remarked, "All those liberals who thought there might a liberal heart beating somewhere in Justice Gorsuch now know that is not true."