Democrats Raise First Amendment Concerns As Gorsuch Confirmation Looms

Democrats fear Gorsuch would rule in favor of President Donald Trump in potential First Amendment or Russia-related cases

Senate Republicans activated the “nuclear option” Thursday, killing the possibility of Democrats filibustering Neil Gorsuch’s nomination to the Supreme Court. Earlier in the day, Kirsten Gillibrand (D-NY) took the floor of the Senate to call for a filibuster and voice concerns over how Gorsuch might handle First Amendment cases in light of President Trump’s calls to “open up” libel laws.

“Voting rights, workers’ rights, reproductive rights, even our First Amendment speech rights, which President Trump has threatened by saying he wants to ‘open up libel laws against the press–if any of these cases make it to the Supreme Court, they will all be decided in part by the next Supreme Court justice,” Gillibrand said.

She added that the judge’s record “does not give me confidence that he will be a justice whose rulings would bolster those individual rights.”

President Donald Trump, who had a habit of suing journalists as a businessman, made changing libel laws part of his platform during the 2016 election. In February 2016 he said that if he were president he would “open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.”

This may not have just been bluster, though, as he returned to the theme on Twitter last week in an attack on the New York Times:

The point may be moot, however. Defamation, which includes libel and slander, falls primarily under state, not federal, law, leaving Trump with few legislative options to change it. That said, if a case were to make it to the Supreme Court, the composition of the court could still be consequential.

Trump himself has a lot of personal experience with libel lawsuits, though he hasn’t been successful yet. Trump sued then-New York Times business reporter Timothy O’Brien in 2006 for $5 billion, claiming that the author had lied about Trump’s net-worth in his 2005 book “Trump Nation: The Art of Being the Donald.” The case was dismissed in 2009 for a lack of evidence.

Trump also counts Silicon Valley billionaire Peter Thiel among his inner-circle of supporters. Thiel surreptitiously funded professional wrestler Hulk Hogan’s lawsuit against Gawker Media over their publication a portion of his sex video. That lawsuit was ultimately successful and resulted in the bankruptcy of the company and the sale of its websites to Univision.

Gillibrand, a Blue Dog Democrat hailing from a traditionally conservative region of upstate New York, took over Hillary Clinton’s Senate seat after she was appointed Secretary of State by President Obama in 2009. Gillibrand has come out strongly in opposition to Trump since his inauguration, and many on the left have begun to consider her as a potential 2020 Presidential contender. So far, though, she says she’s not interested in the top job, instead emphasizing her upcoming 2018 Senatorial run.

Gillibrand’s call to block Gorsuch comes on the heels of Senator Elizabeth Warren’s (D-MA) statement Tuesday that confirming the judge to the Supreme Court would be “crazy” until the investigation into the Trump campaign’s connections to Russia is concluded.

“We are considering confirming a lifetime Trump nominee to the Supreme Court at a moment when the President’s campaign is under the cloud of an active, ongoing FBI counterintelligence investigation that could result in indictments and appeals that will go all the way to the Supreme Court,” Warren said. “So, that Trump nominee could be the deciding vote on whether Trump or his supporters broke the law and will be held accountable. That is nuts.”