One Year Ago: A Reflection on Scalia's Death, and His Likely Replacement

Posted: Feb 13, 2017 3:58 PM

On February 13, 2016, Supreme Court Justice Antonin Scalia died in his sleep in Texas at the age of 79. Once it became clear that Senate Republicans would enforce the Chuck Schumer-endorsed 'Biden Standard' by declining to consider a lame duck president's nominee to replace Scalia in the middle of a contested election year, the conservative legal giant's death focused renewed attention on the stakes of the general election vis-a-vis the federal judiciary. Hillary Clinton supported President Obama's stymied pick but also made it very clear that she was prepared to appoint an ideological-balance-shifting justice, if given the chance. Donald Trump was similarly transparent about his intention to replace Scalia with a similarly-minded jurist, a pledge he reiterated in debates and speeches over many months. The Court proved to be a decisive factor in Trump's upset victory in November; of the 70 percent of voters who said the Supreme Court was an important consideration in their voting decision, Trump edged out Clinton by two points.  Roughly one-fifth of the electorate called this issue their "most important," among whom Trump won by a significant (56/41) margin.  

Some of these voters were undoubtedly Trump-skeptical conservatives who were reassured by Trump's vow to select his nominee from among a roster of names that was widely praised by right-leaning Court-watchers.  Having secured his improbable victory in the fall, Trump's commitment to that crucial promise was almost immediately put to the test last month.  He proceeded to pass said test with flying colors by tapping Judge Neil Gorsuch of the Tenth Circuit Court of Appeals, a man widely viewed as a worthy guardian of Scalia's legacy.  A USA Today piece published today refers to Scalia and Gorsuch as legal and philosophical "soulmates," while an Op/Ed coauthored by three young lawyers who clerked for both men endorses Trump's pick as an ideal heir to the late justice's seat:

In choosing a successor to Justice Antonin Scalia, the president could not have made a better choice than Judge Neil Gorsuch. We can say that with confidence because we have had the honor to serve as law clerks to both men...Although no one can replace the Justice, we can think of no one more worthy of his seat than Judge Gorsuch. He is a brilliant thinker, a fair and independent judge and a clear and effective communicator of important ideas...Judge Gorsuch's opinions reflect the principle Justice Scalia spent his career defending: that in a democracy, the people's elected representatives, not judges, get to decide what laws we should have. In a lecture last year, Judge Gorsuch paid tribute to that "great project of Justice Scalia's career," reminding us of "the differences between judges and legislators" and of judges' duty "to apply the law as it is . . . not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best." Justice Scalia couldn't have said it better himself.

Some Senate Democrats have come out solidly in favor of an up-or-down vote for Gorsuch, with others backtracking and trying to redefine the term. The likelihood of a sustained filibuster still looks relatively remote, but Republicans have a number of options should that sort of blockade materialize. Senate Minority Leader Chuck Schumer, who admittedly abuses the term "extreme" for propaganda purposes, insists that the president's pick must be within the "mainstream." Not only was Gorsuch unanimously confirmed by the Senate in 2006 (including an affirmative vote by Schumer), his subsequent body of work reflects an interpretation of the law that falls squarely within any reasonable definition of "mainstream." Stephen Dinan of the Washington Times explains:

In more than a decade on a federal appeals court, Judge Neil Gorsuch never had one of his own written opinions overturned by the Supreme Court, according to the questionnaire he delivered to Capitol Hill over the weekend in preparation for an eventual confirmation hearing...The questionnaire is also an early test of the way the judge plans to present himself to the senators who will sit in judgment of him, and he appears to be staking out ground as a voice for everyday Americans — and for Congress and the courts — against an expansive executive branch. Asked to summarize his most important cases, Judge Gorsuch singled out a couple of cases where he sided with defendants against federal power, including one in which he said the Bureau of Prisons wronged an American Indian inmate by denying him access to a sweat lodge, which was part of his religion.

Dinan notes that Gorsuch has consistently issued rulings aimed at holding the power of the executive branch in check, a key feature of his appeal to many limited government conservatives -- including National Review's Rich Lowry:

If President Donald Trump is a budding authoritarian, as his critics allege, one of the safeguards is Judge Neil Gorsuch. For all that Trump has flouted norms and gotten off to an at-times amateurish start in the White House, his pick of Gorsuch was extremely normal and highly professional. The Gorsuch nomination is exactly what everyone should want from a President Trump, especially those who most fear and loathe him. Yet Trump's fiercest opponents began denouncing Gorsuch immediately. This is the dilemma for Democrats: Either Trump is a threat to the republic because he doesn't appreciate the Constitution and is bound to violate it with excessive assertions of executive power, or Gorsuch is a threat to the republic because he has an overly punctilious view of the Constitution that entails, among other things, a dim view of executive overreach. Both can't be true.

Before you go, read Marc Thiessen's Washington Post column exploring how the Ninth Circuit's recent (legally garbled and constitutionally suspect) ruling on the president's so-called 'travel ban' executive order once again highlights the importance of populating the courts with judges who reject the ends-oriented activism of a runaway judiciary.