Judge Neil M. Gorsuch’s “personhood” writings will impact confirmation debate

Published 11:17 am Wednesday, March 22, 2017

By Sid Salter

For all of the questionable, quirky and downright bizarre actions and utterances of our newly-minted President of the United States, Donald Trump appears to have done yeoman’s work in selecting a wise, deliberate and qualified nominee to succeed the late Justice Antonin Scalia on the U.S. Supreme Court.

Trump’s high court nominee, Tenth U.S. Circuit Court of Appeals Judge Neil M. Gorsuch of Denver, Colorado, faced Capitol Hill scrutiny from the U.S. Senate during his confirmation hearings this week. Confirmation hearings are complex events and those events usually have precious little to do with the qualifications of the nominee to serve on the federal bench.

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Usually, judicial confirmation hearings are opportunities for the small number of judicial issues that have major both media interest and big lobbies either in favor or again them to engage in ideological warfare with a large audience.

What issues? Gun rights. Reproductive rights. LGBTQ rights. Religious rights. But no issue draws more political fire — pro or con — than abortion rights or more succinctly the Roe v. Wade decision.

From the right or the left, from Republican or Democrat, no single legal posture matters more in judicial confirmation that the nominee’s past record, prior public pronouncements, or in the absence of those, accusations and/or speculation on the nominee’s position on Roe v. Wade.

That’s what makes Gorsuch an interesting nominee at this hypersensitive political juncture in the nation’s history. The Colorado judge has written little to nothing on the issue of abortion or Roe v. Wade — making the potential attack of his partisan opponents difficult.

To be sure, U.S. Senate Democrats remain incredibly angry over the successful Republican decision to deny both a confirmation hearing and a vote to former President Barack Obama’s Supreme Court nominee Merrick Garland. Obama nominated Garland to succeed Scalia, who died well over a year ago.

But given the sins of Democrats and Republicans alike in the judicial nomination game, that’s not a particularly effective platform from which Democrats can hope to block Trump’s Supreme Court nominee.

Neither the Democrat nor Republican parties can claim one solitary inch of high ground on the judicial confirmation front. Both parties do it. Slow rolling or blocking nominations disrupts the separation of powers that the Founding Fathers intended.

One legal concept which will be applied to the Gorsuch nomination is the legal concept of “personhood” in which the 14th Amendment is cited as extending equal protection rights to any “constitutional person.” Gorsuch expressed that belief in past writings about physician-assisted suicide and euthanasia.

Back in 2011, Mississippi voters rejected the so-called “personhood amendment” at the polls. As you might recall, Initiative No. 26, the so-called “personhood” initiative, redefined the word “person” in the state constitution to include fertilized human eggs and undeveloped embryos.

The ballot wording was as follows: “Should the term ‘person’ be defined to include every human being from the moment of fertilization, cloning or the equivalent thereof?” Voters were asked to weigh in with a “yes” or “no” vote. It failed by 59 percent to 41 percent.

Why? In short, “personhood” as a legal concept heaves a grenade of sorts into the traditional pro-life, pro-choice legal argument because of the granting of full constitutional rights to a fertilized egg. That fact led many traditional pro-life voters to worry about possible unintended impacts on birth control, in vitro fertilization and a doctor’s ability to provide care for pregnant women.

The partisan fight over Gorsuch’s nomination will rage as expected. But the Roe v. Wade aspects of the judicial confirmation fight over Gorsuch is far more complex and nuanced. So far, the Gorsuch nomination may well be the most rational act of the Trump administration.

Sid Salter is a syndicated columnist. Contact him at sidsalter@sidsalter.com.