Neil Gorsuch: President Trump's Stellar SCOTUS Selection

Posted: Feb 01, 2017 10:35 AM

Last evening, as we first reported, President Donald Trump nominated Judge Neil Gorsuch to the United States Supreme Court. Gorsuch currently sits on the Tenth Circuit Court of Appeals, to which he was confirmed by acclamation in 2006 "because the nomination wasn't deemed controversial," according to the Denver Post's reporting.  His pedigree is impeccable; he holds degrees from Columbia, Harvard Law, and Oxford, and clerked for two Supreme Court justices (White and Kennedy).  By virtually all accounts, Judge Gorsuch is a committed textualist and originalist who is extremely respected throughout legal circles for his sharp mind and excellent writing. He is also very young, at 49.  Conservatives who supported Trump on the basis of judicial appointments were promised a strong selection to replace the late Justice Antonin Scalia. On this, Trump has followed through on his pledge with a home run pick. We've quoted from this SCOTUS Blog profile before, but it deserves a re-up in light of last night's announcement:

He is celebrated as a keen legal thinker and a particularly incisive legal writer, with a flair that matches — or at least evokes — that of the justice whose seat he would be nominated to fill. In fact, one study has identified him as the most natural successor to Justice Antonin Scalia on the Trump shortlist, both in terms of his judicial style and his substantive approach. With perhaps one notable area of disagreement, Judge Gorsuch’s prominent decisions bear the comparison out. For one thing, the great compliment that Gorsuch’s legal writing is in a class with Scalia’s is deserved: Gorsuch’s opinions are exceptionally clear and routinely entertaining; he is an unusual pleasure to read, and it is always plain exactly what he thinks and why. Like Scalia, Gorsuch also seems to have a set of judicial/ideological commitments apart from his personal policy preferences that drive his decision-making. He is an ardent textualist (like Scalia); he believes criminal laws should be clear and interpreted in favor of defendants even if that hurts government prosecutions (like Scalia); he is skeptical of efforts to purge religious expression from public spaces (like Scalia); he is highly dubious of legislative history (like Scalia); and he is less than enamored of the dormant commerce clause (like Scalia). In fact, some of the parallels can be downright eerie.

Indeed, Gorsuch deeply admired the man whom he's set to succeed on the Court, having paid glowing and emotional tribute to Scalia after his death last year: "Judge Neil Gorsuch of the U.S. Court of Appeals for the 10th Circuit was 'taking a breather' in the middle of a ski run when he heard that Justice Antonin Scalia had died. In speech last April, Gorsuch added that he was 'not embarrassed to admit' he cried his way down the mountain. Nearly a year later, Gorsuch is being widely discussed as a possible replacement for Scalia, whom he called in that speech a lion of the law.'"  An excerpt from that speech, via Ramesh Ponurru's must-read piece on why Gorsuch is such an outstanding choice:

Judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be — not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best. As Justice Scalia put it, “if you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”

Ponnuru quotes a former Scalia and Gorsuch clerk who expounds on the parallels between the two jurists. He also highlights Gorsuch's strong stands for religious liberty in a pair of signifiant cases. On the campaign trail, Trump vowed to nominate a deserving inheritor of the Scalia legacy. Ponnuru concludes that his just-announced pick is, in fact, a "worthy heir."  Another former Gorsuch clerk raves about his former boss' character and commitment to the constitution's text:

Many lawyers know Judge Gorsuch as one of the most talented writers on the federal bench. His law clerks, friends, and family also know that he is also a thoroughly decent person, a family man wholly devoted to his wife and two daughters. Someone who treats everyone with respect. He seemed to know everyone in the courthouse and, on many occasions, our trip back from lunch was detoured with a long conversation with someone who worked in the building (often swapping stories about fishing—one of the judge’s favorite pastimes). What some may not know, however, is his deep commitment to the original understanding of the constitution and the rule of law. As Adam Feldman of Empirical SCOTUS puts it, “he regularly uses originalist principles in his decisions” and thus merits classification “as a heavy originalist based on the originalist indicators in his decisions.” He not only faithfully applies originalist methodology but articulately explains why our constitutional design remains relevant—and critical—over two hundred years later.

If the President-elect’s goal is to replace Justice Scalia with someone who will carry the flag of originalism and teach it to the next generation through engaging opinions, public speeches (see, e.g., Law’s Irony and Of Lions and Bears, Judges and Legislators), and the honest hard work it requires, the choice is Judge Gorsuch. I know the judge’s commitment to originalist principles first hand. Whenever a constitutional issue came up in our cases, he sent one of his clerks on a deep dive through the historical sources. “We need to get this right,” was the motto—and right meant “as originally understood.” I can think of no one better to carry on Justice Scalia’s legacy and, in the words of Justice Thomas, “to stand firm in the defense of the constitutional principles and structure that secure our liberty.”

Constitutionalists across the center-right spectrum are elated at this pick, and even some on the Left who know the man and his work have expressed at least some grudging or personal respect.  Trump has united his party with his superlative choice, whose fate now lies in the United States Senate.  Democrats appear to be splintering on how to respond to this nomination, as Majority Leader Mitch McConnell has guaranteed a successful confirmation (which will reportedly be shepherded through by former Sen. Kelly Ayotte).  I'll leave you with McConnell's Daily Signal opinion column declaring that the election is over, the people have chosen, and the new nominee should receive an up-or-down vote in Congress' upper chamber:

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