President Donald Trump’s nominees for U.S. attorney general and U.S. Supreme Court justice have drawn considerable public attention, and for good reason.
With Trump’s early executive order on travel and immigration raising constitutional questions that may have to be decided by the Supreme Court, and the president repeatedly stating that he intends to investigate voter fraud in primarily blue states, the appointees could play decisive roles in two issues with wide civil rights impacts.
Attorney General Jeff Sessions was narrowly confirmed Feb. 8 to run the Department of Justice and Neil Gorsuch, the federal appeals court judge selected by Trump to succeed Supreme Court Justice Antonin Scalia, is expected to receive a confirmation hearing in the coming weeks.
What priorities and positions can we expect from these two men in these key roles? DrexelNow asked Thomas R. Kline School of Law constitutional law professors Anil Kalhan and David S. Cohen to put the appointees’ views in perspective.
Sessions and Voting Rights
Cohen and Kalhan believe voting rights could be a particularly controversial area in Sessions’ Department of Justice.
Sessions, who was a senator from Alabama until his confirmation and previously was U.S. attorney for the Southern District of Alabama, has called the 1965 Voting Rights Act “intrusive” and has been staunchly opposed by most Democratic senators for his perceived attempts to limit the franchise. His opponents pointed to his failed voter-fraud prosecution of three black civil rights activists, who were working to increase black voter turnout in Alabama, as an indication of his views on voting rights.
“He’s certainly not going to vigorously go after states that infringe on voting rights,” said Cohen. “The Voting Rights Act of 1965 puts the power in the Department of Justice to enforce it and I can’t see his Department of Justice doing anything to further the rights of people to vote.”
The Supreme Court’s 2013 ruling in Shelby v. Holder creates a challenge for voting rights advocates, Kalhan said. The ruling struck down two portions of the Voting Rights Act of 1965 that required states with a history of voter discrimination to obtain approval from the federal government before they amend their election laws.
“[Sessions’ confirmation] will probably be perceived by states and localities as a green light to push the envelope on various kinds of voting rights restrictions,” said Kalhan. “I would expect that he is likely to not only stand back and passively let [restrictions] of voting rights happen at the state and local level, but may also use the Department of Justice to actually interfere with voting rights in different ways.”
As for the travel ban, Sessions is expected to defend it with conviction, and even after the order expires, he can play a large role in defining how welcome noncitizens feel in America.
“Sessions has been one of the leading restrictionist voices on immigration in the Senate for many years, in terms of his legislative record,” said Kalhan.
Kalhan pointed to Trump’s recent executive order regarding so-called “sanctuary cities” as an indication of how a Sessions-led Department of Justice might help to tighten immigration policies. The order seeks to pull federal funding from cities that do not assist federal immigration officials with the detainment and deportation of immigrants.
“They essentially want to enlist state and local police in those efforts, and a lot of cities are not interested, Philadelphia being one of them,” said Kalhan.
Trump ordered the weekly publication of a list of crimes committed by undocumented immigrants in sanctuary cities, which Kalhan said puts Sessions in a position to provide legal support to the administration’s stated interest in restricting immigration and increasing deportations.
Gorsuch and Originalism
The scope of Sessions’ actions could be defined, in part, by a Supreme Court ruling on the immigration executive order. But because it’s uncertain whether or when the court might hear the case, there’s no way to know whether Gorsuch could be on the bench to participate, Cohen said. Even if he is, predicting how he might view the order based on his lower-court opinions is risky, Kalhan said, because the Supreme Court’s role is unique.
What is known about Gorsuch is that he is a self-described “originalist,” meaning he “believes the Constitution should be interpreted as it was understood by the people who voted for it,” said Cohen.
That means that changes in society and culture should not influence a judge’s interpretation of what the Constitution and later amendments were intended to mean when they were drafted. As Gorsuch wrote in a concurring opinion last year, “that document isn’t some inkblot on which litigants may project their hopes and dreams.”
But, given changes in the law and societal norms over the years, sticking strictly to such a position is a challenge, Cohen said. If Gorsuch were a true originalist, Cohen argued, his legal principles would go against the typical conservative grain on certain issues. For example, one could argue that a strict originalist would have to support affirmative action, Cohen said, because the Constitution was not blind to race and so there is nothing to prevent institutions from acting in the benefit of minorities. Scalia and Justice Clarence Thomas both embraced originalism, but have both opposed affirmative action.
There are other potential sticking points for a true originalist, Cohen said.
“The idea that corporations are people who have First Amendment rights does not square with originalism,” he said, referring to the controversial 2010 Citizens United decision that held that political spending by corporations and unions is protected speech. “The idea that women should be treated equally does not square with originalism. The idea that black and white people shouldn’t be prohibited from marrying. … No justice wants to say we should allow states to prohibit black and white people from marrying each other, it’s not a popular position, but if he’s an originalist, he would say that.”
Cohen said Gorsuch’s vision of originalism should be thoroughly discussed at his Senate confirmation hearing.
“The senators need to ask him these questions and see if he is serious about originalism,” said Cohen. “And, if he’s not, just make it clear.”
As for how Gorsuch would shift the Supreme Court’s balance, Kalhan said there is no reason to think Gorsuch would be “anything other than a reliable conservative justice in the mold of Antonin Scalia.”
However, one potential area of the law in which Gorsuch could distinguish himself from Scalia is in so-called “Chevron deference,” said Kalhan. Named after a 1984 Supreme Court ruling, the term refers to the principle that courts should defer to agencies for interpretations of laws.
“He’s written opinions in a number of different cases criticizing the Chevron rule, saying judges should not defer,” said Kalhan. “That would be a significant shift.”
Less deference to agency interpretations could mean the courts second-guess those agencies more frequently, and that could affect regulations and policies ranging from consumer and environmental protections to the open internet. Or, conversely, it could disincline Gorsuch to defer to the executive on some matters. For instance, many took note when Gorsuch called Trump’s attacks on judicial independence after federal judges upheld the stay on his travel ban “disheartening” and “demoralizing.”