Judge Neil Gorsuch’s fascination with death could come back to haunt him when his Supreme Court confirmation proceedings begin in the Senate, especially among Democrats who are wary of confirming an anti-abortion justice.
Gorsuch has written at length on issues of death and dying — he wrote a book titled “The Future of Assisted Suicide and Euthanasia” — and has consistently offered a defense of the inviolability-of-life principle. Senate Democrats looking to obstruct Gorsuch’s confirmation may take issue with his writing on assisted suicide and read between the lines of his work for evidence that he could oppose abortion rights from the bench.
Gorsuch’s book on assisted suicide revealed that he believes that “the intentional taking of human life by private persons is always wrong.” In the book, he argued that if Americans begin to justify the intentional taking of human life as a necessity, then the weakest and most vulnerable people could be deemed less valuable and receive less protection under the law.
At his 10th Circuit Court confirmation proceedings before the Senate in 2006, Gorsuch said his personal views on the issue of assisted suicide and euthanasia would have nothing to do with how he will adjudicate cases.
“[M]y writings, just to clarify, have been largely in defense of existing law, that is, they are consistent with the Supreme Court’s decisions in this area and existing law in most places,” Gorsuch said at the time. “So, I do not think there is actually much tension between my writings and anything that might come before the court, but I can pledge to this committee, senator, that I will reach any question before me, should I become a judge, with an open mind and listen to the arguments of counsel, the views of my colleagues and prior case law from the Supreme Court, and the various Courts of Appeals.”
Still, Senate Democrats looking to shine a spotlight on the issue of abortion may try to get Gorsuch to explain when he thinks life begins. If Gorsuch offers up his view on whether abortion constitutes the “intentional taking of human life,” he could suffer from staunch opposition among left-leaning activists that turned out in large numbers at last month’s women’s marches.
Gorsuch’s reference to the issue of abortion in his book on assisted suicide hinted that he does not interpret the issue of abortion in a manner influenced by any personal view he may hold but by Supreme Court precedent. Gorsuch noted in his book that, “Under Roe’s express holding, a fetus does not qualify as a person.”
Such application of the law may not please President Trump, who is likely counting on Gorsuch to help “automatically” reverse the high court’s ruling in favor of abortion rights in Roe v. Wade, as Trump indicated during an October 2016 presidential debate. But Gorsuch’s aversion to weighing in on the controversial issue of abortion may make it easier for him to combat criticism from left-leaning groups that have already begun questioning the independence of Trump’s Supreme Court nominee.
Gorsuch’s views on death and dying could also tip the balance of the Supreme Court in crucial death penalty cases. A split 4-4 Supreme Court decision in December 2016 allowed the execution of an Alabama man to proceed after multiple stays from the high court. Supreme Court Justice Stephen Breyer followed that decision with a public call for the high court to “reconsider the constitutionality of the death penalty.”
Breyer may not have an ally in Gorsuch in undoing the death penalty nationwide. Gorsuch’s rulings in cases involving the death penalty do not appear to reveal a judge concerned about the punishment’s constitutionality, but analyses have found that he often favors the side of criminal defendants against the state making him an “unlikely ally of underdogs in criminal court.”
As an originalist in the mold of the late Justice Antonin Scalia, whose seat Gorsuch hopes to fill, Gorsuch has shown a propensity to deliver a ruling that produces an outcome with which he disagrees, which may render his personal beliefs moot.
“It is the role of judges to apply, not alter, the work of the people’s representatives,” Gorsuch said at the White House last week after Trump nominated him. “A judge who likes every outcome he reaches is very likely a bad judge stretching for results he prefers rather than those the law demands.”
Potential opponents of Gorsuch’s nomination have already sought to weaponize his court’s rulings in death penalty cases against him, and will likely continue to do so as the confirmation proceedings approach. Democratic Sen. Ron Wyden of Oregon listed Gorsuch’s position on life-and-death issues as his reasoning for opposing the judge’s Supreme Court nomination.
“His opposition to legal death with dignity as successfully practiced in Oregon is couched in the sort of jurisprudence that justified the horrific oppression of one group after another in our first two centuries,” Wyden said in a statement on the night of Gorsuch’s nomination. “No senator who believes that individual rights are reserved to the people, and not the government, can support this nomination.”
