President Nominates Neil Gorsuch for Vacant Supreme Court Seat
Author: David B. Weisenfeld, XpertHR Legal Editor
February 1, 2017
President Trump has nominated Judge Neil Gorsuch of the Denver-based 10th Circuit Court of Appeals to fill the Supreme Court seat left vacant since the February 2016 death of Justice Antonin Scalia. If confirmed, the 49-year-old Gorsuch would be the youngest justice since Clarence Thomas in 1991.
In terms of employment law, much of Judge Gorsuch's record as a federal appellate court judge mirrors that of Justice Scalia. For instance, he voted with the 10th Circuit majority in a key Affordable Care Act case that federal law prohibited the Department of Health and Human Services from requiring closely-held, for-profit corporations to provide contraceptive coverage to female employees as part of their employer-sponsored health insurance plans.
The Supreme Court affirmed that ruling, 5-4, in a 2014 ruling in Burwell v. Hobby Lobby Stores. The Court held that protecting the religious freedom rights of closely-held corporations protects the religious liberty of the individuals who own and control them.
Whether the Senate will confirm Judge Gorsuch in time for him to serve before the end of the Supreme Court's current term remains to be seen. President Obama had nominated Merrick Garland to fill the seat last March, but the Senate never voted on the nomination and allowed it to lapse. Circumstances are different this time, but a confirmation battle may be looming.
If Judge Gorsuch is confirmed, the Supreme Court may revisit some employment issues, perhaps most notably the ability of public employee unions to collect dues from nonmembers. In Friedrichs v. California Teachers Association, the Court split 4-4 shortly after Justice Scalia's death, leaving a lower court ruling in favor of the state teachers' union intact. Once the Court has a full complement of nine members, it may decide to hear a similar case.