Trump’s Refugee Order Looms Large Over Gorsuch Hearing

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Kevin Daley Supreme Court correspondent
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The ongoing legal battle over President Donald Trump’s executive order on refugee and migrants may dominate next week’s hearings on Judge Neil Gorsuch’s nomination to succeed the late Justice Antonin Scalia on the Supreme Court.

Recent days have suggested that the Senate Democratic caucus has finally settled on messaging on the nomination. Democrats plan to paint Gorsuch as a callous judge who consistently aligns himself with powerful constituencies.

“Obviously, the social issues are always looming out there with any justice,” said Senate Minority Leader Chuck Schumer. “But where [Gorsuch is] particularly vulnerable is in this anti-worker, pro-corporate record.”

Washington Democratic Sen. Patty Murray, the number three Democrat in the chamber, echoed those sentiments.

“You can find example after example of Judge Gorsuch siding against workers even in the most dire circumstances,” she said.

Trump’s revised executive order on refugee and migrants, and two new court orders temporarily enjoining its enforcement, could hijack the hearing and dominate the proceedings.

It appears increasingly likely that Trump’s directive will soon reach the Supreme Court. The litigation is unfolding at a rapid pace because of its procedural posture and because of the national security issues it implicates. As such, the order attracts judicial attention very quickly. Additionally, all the parties participating in the case are highly motivated, and have the resources necessary to litigate the case all the way to the high court.

Finally, multiple courts have issued temporary restraining orders (TROs) barring the directive’s enforcement, and will probably be reviewed by two separate circuit courts — the 9th and the 4th U.S. Circuit Courts of Appeal. Should the court reach separate conclusions about the order, the odds of Supreme Court review increase dramatically.

Senate Democrats could use the hearing to bludgeon Gorsuch with questions about his rulings in the areas of immigration, due process, religious discrimination, and executive power, to determine some sense of how he will rule in the case. The prospect of a Supreme Court case concerning Trump’s revised order could provide the banner around which Senate Democrats can energize its liberal base. Left-leaning voters are otherwise displeased with the Democratic Party’s milquetoast performance in the face of the Gorsuch nomination.

It’s not clear how Gorsuch’s vote would impact the outcome, should he be confirmed. If the Court breaks along ideological lines, the case will likely be decided by Justice Anthony Kennedy, for whom Gorsuch formally clerked.

The judge-clerk relationship weighed heavily during the Trump administration’s judicial selection process, as well as the possibility that Gorsuch could successfully prevail upon Justice Kennedy, given their special relationship.

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