Reform Jews Concerned, Orthodox More Supportive of Trump's Supreme Court Nominee

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Neil Gorsuch speaks after U.S. President Donald Trump nominates him on January 31, 2017 to be an associate justice of the U.S. Supreme Court.
Neil Gorsuch speaks after U.S. President Donald Trump nominates him on January 31, 2017 to be an associate justice of the U.S. Supreme Court.Credit: KEVIN LAMARQUE/REUTERS

WASHINGTON, D.C. - The Religious Action Center of Reform Judaism was the first Jewish organization on Tuesday night to respond to President Donald Trump's nomination of Judge Neil Gorsuch to the U.S. Supreme Court, expressing concern over his record and views. 

The Center noted that while the Reform movement is looking forward to his confirmation hearings, it could have significant reservations about Gorsuch. 

Rabbi Jonah Pesner, the center's director, told Haaretz on Wednesday that "we want to hear about his commitment to civil rights, his understanding of religious freedom, his approach to LGBT rights, his position on women's access to health care and other issues that are important to our values." The Center's statement on the nomination was issued in the name of the wider Reform movement, including the Union for Reform Judaism, which is the largest Jewish group in North America. 

"One issue that we're particularly worried about, in light of the president's latest statement, is the nominee's approach to voting rights," Rabbi Pesner told Haaretz. Trump has stuck to false claims in recent days that millions of illegal votes were cast in the 2016 election, and Pesner, like many others, is worried that the president is repeating these claims in order to set the ground for putting limitations on the right to vote.

"It's a lie, we need to call it what it is. There's almost zero instance of voter fraud, while there is widespread voter suppression across the country, because of laws that contradict the Voting Rights Act of 1965," says Pesner. The Voting Rights Act, he mentions, was drafted at a meeting that took place in the Washington offices of the Religious Action Center, with Dr. Martin Luther King in attendance. "We'll want to see what Judge Gorsuch has to say about protecting Americans' right to vote, does he stand for it or not – that's going to be a big question."

In general, Pesner says, "we need to look at this nomination within the wider context of what this administration has done so far, in its' first 12 days in office. We're looking at a White House that is creating fear and hatred against refugees and is advancing policies directed against Muslims. When that's the entire picture we're looking at, it becomes very important to understand what the Supreme Court nominee has to say about civil rights, because a lot of these questions might come before the court." 

The White House sent out on Wednesday morning a compilation of editorial board articles from across the country, that included praise for Gorsuch's character, integrity and qualifications. Among the editorial boards quoted in the document were the San Francisco Chronicle, the Denver Post, the New York Daily News and the Houston Chronicle, all of which endorsed Hillary Clinton for president during the last elections. Pesner says that "personal qualification is an important issue, but for our movement the biggest question is whether or not his jurisprudence runs against our values, and that's what we'll be looking at we decide whether to take a position on this nomination." 

Pesner adds that "it's quite rare for us to oppose a nominee for the Court, the last time we did that was when Samuel Alito was nominated in 2006. If we take that kind of position, it's always with hesitation, because we know the weight of the history of this movement rests on our shoulders today." 

Under the current administration, the Reform movement has already taken a position against the president's nominee for Attorney General, Senator Jeff Sessions (R-AL), and against his appointment of Steve Bannon as his special adviser. Pesner says that opposing Bannon's appointment has proven out to be a right decision, in light of the controversy that erupted last week when the White House "stripped the Holocaust of its' Jewishness," as he puts it. "Was this just pure ignorance, or is it something different – a dog whistle aimed at neo-Nazis and anti-Semites? These were some of his campaign's grassroots supporters, after all. We were strongly opposed to the Bannon appointment, and this thing may have his fingerprints on it." 

While the Reform Movement has already expressed its' concerns over Gorsuch's nomination, Trump's nominee received a warmer first reaction from the Orthodox community. Nathan Diament, the executive director for public policy at the Orthodox Union, wrote on Twitter that Gorsuch's nomination "is welcome to those who care about religious liberty," and that the Judge has a "solid record" on religious liberty cases, "showing respect for conscience and diverse beliefs." 

Diament told Haaretz on Wednesday that while the Orthodox Union is still studying Gorsuch's record and has not taken a position on his nomination, "from what we've seen so far there are encouraging signs." Diament explained that "for the Jewish community in general and the Orthodox community specifically, there's no area of constitutional law that the Supreme Court deals with that's more important than religious liberty. There are situations when a local government or the federal government might take decisions that, even if not intended to, might hurt religious liberty, and so for us it's very important to have Justices in the Supreme Court that have a strong position on this." 

One of the most famous cases that Gorsuch ruled on in recent years, as a judge in the U.S. Court of Appeals for the 10th Circuit, was Burwell vs. Hobby Lobby, in which the owners of a chain of arts and craft stores claimed that the U.S. government shouldn't impose on them to provide contraceptive coverage to employees as part of the chain's group health insurance plan, a requirement that was part of the Affordable Care Act (Obamacare.) The reasoning for this argument was that the owners of the chain are practicing Catholics, and that this requirement forced them to act against their religious belief. The court accepted this argument, and Gorsuch wrote in the concurring opinion that the government's policy under the ACA required the chain's owners "to violate their religious faith by forcing them to lend an impermissible degree of assistance to conduct their religion teaches to be gravely wrong."

Another case that Gorsuch ruled on and included questions of religion was American Atheists vs. Davenport, in which the question before the court was whether placing crosses on the sides of state highways, in memory of fallen state troopers, was against the Establishment Clause that forbids the government from promoting religion. Gorsuch's opinion in that case was that placing a cross in memory of a fallen state trooper, resembling crosses in military cemeteries, did not pass the reasonable test for violating the Establishment Clause.

"I would say he seems to have a very realistic approach to these questions," Diament told Haaretz. Diament studied at Harvard Law School at the same time as Gorsuch (who graduated in the same class as former President Barack Obama,) but said he only vaguely remembers the judge. He added that in the past, the Orthodox Union wrote to members of the Senate in favor of Supreme Court nominations made by presidents from both parties, including Bush's nomination of Justice Alito in 2006 and Obama's nomination of Justice Elena Kagan in 2010. 

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