Los Angeles, CA – MALDEF President and General Counsel Thomas A. Saenz issued the following statement Monday opposing confirmation of Neil Gorsuch to the United States Supreme Court.
“Consistent with its mission to promote through the legal system the civil rights of all Latinos living in the United States, MALDEF (Mexican American Legal Defense and Educational Fund) has generally taken a public position in support of or in opposition to Supreme Court nominees. However, in 2010, MALDEF took no position on the nomination of the last justice to be confirmed, Elena Kagan, because of the absence of an indication that she had a demonstrated familiarity with and appreciation of the significant legal issues of concern to the Latino community. At that time, MALDEF argued that the significant size and projected growth of the Latino population meant that issues of central concern to the Latino community would comprise an increasing proportion of the Supreme Court docket.
Seven years later, 2010 Census results and the recent Supreme Court docket, particularly in cases involving constitutional and civil rights, demonstrate the continuing accuracy of MALDEF’s 2010 assessment.
Today, we once again have a Supreme Court nominee, Judge Neil Gorsuch, whose age indicates that he is likely to serve, if confirmed, for decades to come. By the end of that time, projections show that more than one in four Americans will be Latino. With such a large and growing Latino proportion of the population, consideration of any potential federal judge’s knowledge, understanding, and appreciation of the significant legal concerns of the Latino community ought to be a matter of substantial consideration in evaluating candidates.
It is therefore exceedingly disappointing that Gorsuch’s confirmation hearings before the Senate Judiciary Committee concluded last week without a single live witness from the Latino community. While three other major racial/ethnic groups were each represented by more than one live witness, the Latino community was totally unrepresented among the live witnesses presented by either the majority or the minority party. While deplorable and unacceptable, this absence of representation of the largest minority group in the country does not excuse or obviate the need to evaluate the nominee’s demonstrated familiarity and appropriate appreciation of the major legal issues of concern to the Latino community.
In considering Gorsuch from this perspective, he is regrettably tainted by his nominator, who commenced his presidential campaign by slandering the Mexican American community and, in the particular realm of judicial decision-making, later accused an eminent Mexican American jurist of bias simply because of his ancestry. If this twisted perspective influenced Donald Trump’s selection of Judge Gorsuch, that alone would yield substantial concerns about the nomination. Moreover, the fact that the candidate was born and lives in Colorado – one of our most Latino of states – and the majority presented not a single Latino witness familiar with the candidate also raises doubts.
Ultimately, however, MALDEF’s decision to oppose the confirmation of Neil Gorsuch to the United States Supreme Court stems from troubling indications in his judicial record that he does not understand or that he does not appreciate the legal concerns of the Latino community. Many others have already catalogued Judge Gorsuch’s troubling decisions, joinders, and dissents in civil rights cases. While considering his entire record, MALDEF gave particular consideration to his participation in a developing area of constitutional jurisprudence – the asserted clash of constitutional rights between entities and persons in a context of significant disparities in power.
In the Tenth Circuit’s consideration of the Hobby Lobby Stores case, Judge Gorsuch joined a decision, and expanded upon it through his own written concurrence, that accorded a corporation the right to free exercise of religion – a right that under the words of the Constitution applies to persons, not entities – and then used that “right” to override, in practical terms, individual employees’ rights to contraceptive health care by preventing the government from protecting that right in the most practical way possible. The decision, ultimately and troublingly upheld by a divided Supreme Court, elevates entities, which already enjoy substantial power, over individual employed persons, with much less power.
There are too many recent examples of similar cases to deny that this is a developing and evolving area of constitutional law. These cases in which entities – corporations, state governments, local governments – seek recognition of rights previously believed to be rights enjoyed solely by living humans, and in which persons with little power – immigrants, employees, LGBTQ persons, racial minorities – face attempts to reduce or even eliminate their human rights, are likely to proliferate in the future. The Supreme Court will play the key role in this, as any, developing area of constitutional jurisprudence. As the area develops, it will increasingly be Latinos and Latinas who are on the human end of this asserted clash of “rights.” Neil Gorsuch’s record shows that he would likely play a troubling role in this evolving area of law – to the detriment of the Latino community and many others.
Therefore, MALDEF opposes the confirmation of Neil Gorsuch to the United States Supreme Court and calls upon the United States Senate to reject his nomination in favor of a subsequent nominee who has a demonstrated understanding of and appropriate appreciation for the legal rights concerns faced in the growing Latino community.”