Three UC Berkeley School of Law professors, John Yoo, Jesse Choper and Daniel Farber, debated in a panel Tuesday about recent U.S. Supreme Court nominee Neil Gorsuch’s qualifications and the effect he will have on the Supreme Court.
Yoo, Choper and Farber — who have all served law clerks on the Supreme Court — discussed their opinions on Gorsuch and his stances on specific court cases. All three agree that Gorsuch is conservative and highly qualified, but they worry about what might happen in the future.
On Jan. 31, President Donald Trump nominated Gorsuch for the vacant Supreme Court seat, which was left open after Justice Antonin Scalia’s death almost a year ago. The Senate Judiciary Committee is set to hold the confirmation hearing for Gorsuch in March. His nomination will then go to the entire Senate for a vote, where it will require 60 senators to pass his confirmation.
“Yes, (Gorsuch) is qualified, perhaps better than any other nomination (Trump) has made to cabinet seats,” Choper said.
Gorsuch has clerked for three Supreme Court justices, including Anthony Kennedy, before serving in a private law firm. Later, he was appointed to his current position as a federal appellate judge sitting on the 10th Circuit Court of Appeals.
Yoo said Gorsuch’s past stances on religious liberty, such as in the Burwell v. Hobby Lobby Stores, Inc. case in 2014, are most likely the reason he was considered for the nomination.
While Gorsuch and Scalia are both originalists — meaning they interpret the Constitution based on the intentions of the Founding Fathers — Gorsuch holds different beliefs on topics such as euthanasia and administrative law that are not traditionally conservative, according to Yoo.
Gorsuch is someone who is open-minded and does not have a knee-jerk response, Farber said. He added he believes Gorsuch’s past opinions on the 10th Circuit have had a more “humane” tone than Scalia’s.
Farber said a filibuster by Democrats could be eliminated by the majority Republican Senate. Last year, Republicans filibustered against President Barack Obama’s nominee Merrick Garland.
“In principle, I see an argument for retaliating,” Farber said, responding to a potential filibuster. “I guess if (Gorsuch) had been (like) Trump’s other possible choices … but I don’t feel like that’s this case.”
The panel also discussed the possibility of Supreme Court justices dying or retiring under Trump’s administration, especially since the three oldest justices — Ruth Bader Ginsburg, Stephen Breyer and Anthony Kennedy — are either liberal or moderate. Farber said he thinks the possibility of these justices retiring is unlikely.
“I think (Trump) is just unpredictable in the future if we have another vacancy on the court,” Choper said.
The panelists noted a new vacancy and Trump appointee could result in previous decisions such as Roe v. Wade being overturned.
“I think the challenge with anything like this is it’s all speculation,” said Sean Litteral, a campus law student, about the panel. “I think (the event) was useful because they all have such a large set of experiences to lean on having studied the Supreme Court that they would know what it would look like if he were confirmed.”