Trump’s original list of 21 US Supreme Court justice nominees to replace Antonin Scalia who died in February last year was recently brought down to a top-two choice:
-Thomas Hardiman, 51, from Massachusetts, a federal judge on the United States Court of Appeals for the Third Circuit. He is basically a reliable conservative, but somewhat enigmatic, and perhaps not as strict an originalist as Justice Scalia was.
-Neil Gorsuch, 49, from Denver, a United States Circuit Judge of the United States Court of Appeals for the Tenth Circuit. He is a conservative in the strong intellectual tradition of former Justice Scalia.
The choice has just been announced, with Gorsuch getting the nod. He is a keen defender of religious freedom, an Episcopalian, and he mentioned the importance of his faith in his speech given just moments ago. A recent piece from LifeSiteNews said this about the man:
Gorsuch, 49, is a favorite of social conservatives because of his record defending religious liberty and pro-life views. Just last year, Gorsuch sided with Utah Governor Gary Herbert when he sought to defund Planned Parenthood.
In Hobby Lobby Stores v. Sebelius, Gorsuch sided with the Christian-owned craft store that did not want to be forced by the government to provide certain contraceptives through its health plan.
Gorsuch favored the Little Sisters of the Poor when dissenting from a 10th Circuit decision saying the nuns must be forced to formally cooperate with the provision of insurance that covers contraception. The dissent essentially said that the 10th Circuit “had shown insufficient deference to the Little Sisters’ own articulation of the tenets of their religious beliefs,” according to SCOTUS blog….
In 2009, Gorsuch wrote The Future of Assisted Suicide and Euthanasia, in which he argued that human life has intrinsic value and “that intentional killing is always wrong.”
The nuanced book examined legal and ethical issues surrounding assisted suicide and euthanasia, as well as the roles patient autonomy and refusal of unwanted medical care play. Its publisher, Princeton University Press, calls the book “the most comprehensive argument against their legalization ever published.” Gorsuch studied under natural law expert John Finnis.
Of Roe v. Wade, Gorsuch wrote that there is “no constitutional basis” for giving a mother more rights than her unborn child (The Future of Assisted Suicide and Euthanasia, p. 82):
In Roe, the Court explained that, had it found the fetus to be a “person” for purposes of the Fourteenth Amendment, it could not have created a right to abortion because no constitutional basis exists for preferring the mother’s liberty interests over the child’s life.
It doesn’t appear that Gorsuch has ruled on a case directly related to the constitutionality of abortion. Nevertheless, NARAL Pro-Choice Colorado – a pro-abortion group in Gorsuch’s home state – opposes him because of his “record of ruling in a way that does not reflect Colorado values on reproductive rights.” Legal expert David Lat describes Gorsuch as “brilliant, conservative, and impossible to oppose.”
Senator Ted Cruz just said this about the choice:
Like the renowned justice he is set to replace, Judge Gorsuch is brilliant and immensely talented. He has impeccable qualifications, having clerked at the Supreme Court, excelled in private practice, served at the highest levels of the Justice Department, and garnered a stellar reputation over the past decade as an appellate judge. More importantly, though, he also mirrors Justice Scalia in that he has a proven track record of honoring the Constitution, following the text of the law, and refraining from imposing his policy preferences from the bench. As a result of his fidelity to law, he has proven to be a champion of federalism, the constitutional separation of powers, religious liberty, and all of the fundamental liberties enshrined in our Bill of Rights. I couldn’t be happier with his selection.
Ramesh Ponnuru who tipped Gorsuch to get the nomination, said this about him several days ago:
That Judge Gorsuch’s judicial philosophy is similar to Justice Scalia’s is evident from a tribute the former gave after the latter’s death. In that tribute, Gorsuch summarized and endorsed Scalia’s method of legal interpretation:
“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’.”
A lawyer who clerked for both Justice Scalia and Judge Gorsuch sees parallels between the two men. Gorsuch is “a law-has-right-answers kind of guy, an originalist and a textualist,” he says. “He believes that the enterprise of law is real and worth doing and not just politics by other means.”
A low-profile 2012 case, U.S. v. Games-Perez, illustrates how Gorsuch has applied these views. At issue was a federal law that authorizes prison terms for anyone who “knowingly violates” a ban on the possession of firearms by a convicted felon. A precedent in the Tenth Circuit held that a defendant who knew that he had a firearm could be sentenced under that provision even if he did not know that he was a convicted felon. (In the case Gorsuch was deciding, Miguel Games-Perez had previously taken a plea deal that the presiding judge had misdescribed as an alternative to being “convicted of a felony.”)
Gorsuch participated in a panel of three of the circuit’s judges that affirmed the prison sentence. Gorsuch concurred in the result because he felt bound by precedent. At the same time, he made a powerful argument that the circuit’s precedent could not square with the text of the law. And when the case later came before the circuit, he urged it to reconsider that precedent.
The case brought together several strands of Gorsuch’s thinking. It demonstrated his willingness, shared with Scalia, to overturn a criminal conviction when a proper reading of the law required it. He paid close attention to the text and grammar of the law while expressing skepticism about letting legislative history guide his decision. “Hidden intentions never trump expressed ones,” he wrote, adding an aside about “the difficulties of trying to say anything definitive about the intent of 535 legislators and the executive.” (Scalia was a foe of the judicial consideration of legislative intent for similar reasons.) And it showed, as well, his understanding that a judge must follow his duty even when it leads somewhere he dislikes. “He cared a lot about what the precedents are,” says the former clerk. “He was not interested in bending them or the usual tricks judges can use for getting around them if they don’t like them.”
Also like Scalia, Judge Gorsuch is skeptical of the “dormant commerce clause”: the longstanding legal doctrine that the Constitution’s grant of power over interstate commerce to Congress implies limits on the states’ power over it even when Congress has not spelled out those limits. And he shares Scalia’s preference for clear legal rules over vague “standards” that judges can manipulate to reach desired conclusions.
The last line of this biographical description will hearten many:
Supreme Court Justice nominee Neil Gorsuch is a Colorado native and the son of a Republican politician, the late Anne Gorsuch Burford, who was a state legislator and then director of the Environmental Protection Agency for President Reagan. Gorsuch attended Columbia University and Harvard Law School, after which he clerked for D.C. Circuit Court judge David Sentelle Gorsuch then clerked for Supreme Court justices Byron White and Anthony Kennedy in 1993–94. The next year he studied for a doctorate of philosophy at Oxford University under the legal philosopher John Finnis.
Finnis is of course a strong pro-life Catholic natural law philosopher and ethicist from Australia. As mentioned, however, Gorsuch has not ruled on an abortion case thus far, and some have shared their concerns that neither of the two top-listers had been known for having particularly strong pro-life views at least in terms of actual rulings.
Given that so many pro-life conservatives insisted on running with Trump so that a strong pro-life justice might be appointed, this may be a bit of a letdown to some. But time will tell how he proceeds on the bench. And that of course is not yet certain.
The Democrats have already made it clear that they will do all they can to block this nominee. Indeed, all 21 of the original list were going to be opposed by the Democrats. So this will be one long and bitter battle, but there are a few tricks up the Republicans’ sleeve, including what is known as the “nuclear option”.
As one site explains:
It takes a simple majority — 51 out of 100 senators — to confirm a Supreme Court justice. Republicans hold 52 seats in the Senate. So if every member voted along party lines, any of Trump’s nominees would successfully be voted onto the highest court in the land.
But Democrats could try to filibuster to prevent that vote from taking place at all. In theory, if they are united, Democrats could postpone a vote on any nominee for years — because as of right now, it takes a supermajority of 60 votes to end a filibuster, allowing the vote to proceed.
But if the Republicans wanted, a simple majority could vote to change Senate rules, eliminating the filibuster option entirely for Supreme Court nominations. That’s the nuclear option. It would make it significantly easier for the majority party to confirm any Supreme Court nominee going forward.
So be prepared for more political warfare, as the Democrats do all they can to block the nomination.