President Donald Trump has made his choice for the Supreme Court and it is Tenth Circuit Judge Neil Gorsuch, 49. With the selection, President Trump would be submitting a jurist with unassailable credentials and proven intellect. He is also someone with a proven conservative record, though there are a few blind spots for those who want a nominee vaccinated against what conservatives view as the David Souter virus — a creeping condition where a conservative gravitates to the left of the Court with time. Last night, The Hill newspaper ran my column on Gorsuch and his unquestioned qualifications.
Gorsuch comes from what can be viewed as conservative aristocratic stock. He is the son of David Gorsuch and Anne Gorsuch Burford. His mother achieved fame (or infamy depending on your view) as the first female head of the United States Environmental Protection Agency from 1981 to 1983. A Reagan appointee, she was forced to resign for failure to turn over documents to Congress in any investigation of the Superfund. She long maintained that she was following the advice of counsel. Judge Gorsuch spent time in Washington, D.C. and attended Georgetown Preparatory School and received his B.A. from Columbia University in 1988. He earned his J.D. from Harvard Law School in 1991 and then received the prestigious Truman Scholarship and later received a Doctor of Philosophy in Law from University College at Oxford University in 2004 under a Marshall Scholarship.
He went on to clerk for Judge David B. Sentelle on the United States Court of Appeals for the D.C. Circuit from 1991–1992, and then for United States Supreme Court Justices Byron White and Anthony Kennedy from 1993–1994. After going into private practice and becoming a partner, he served as Principal Deputy to the Associate Attorney General, Robert McCallum, at the U.S. Department of Justice from 2005 until 2006.
It is a stellar resume and Gorsuch is widely viewed as a powerful writer and intellectual leader on the Court. That should be a comfort to conservatives who lost an intellectual icon in Antonin Scalia.
Unfortunately, Gorsuch would continue the problematic exclusion of all schools but Harvard and Yale law schools from the Court. Gorsuch graduated from Columbia, Harvard, and Oxford. I have previously written how this exclusion can no longer be dismissed as some colossal coincidence. When you virtually exclude all but two of the nation’s 160 law schools as sources for justices, it not only reduces the number of outstanding candidates but guarantees a certain insularity in training and influences on the court. This bias is not only elitist but decidedly anti-intellectual.
Gorsuch could prove the perfect addition for a right coalition, particularly in working with the Court’s perennial swing justice — Anthony Kennedy. As a former clerk to Kennedy, Gorsuch could prove key in any future coalitions. He is also someone who has a good reputation even with liberals (He went to law school with Barack Obama).
Where Gorsuch may depart from Scalia is in his approach to federal agencies and the Chevron doctrine. Gorsuch has criticized the decision (a view that I share) and has indicated that he would prefer a less deferential approach to agency decision-making. Scalia upheld such deference though I have heard that he privately expressed qualms about that aspect of his jurisprudence toward the end of his life. It is his position on federal agencies that I consider the most interesting in this nominee. He has warned how federal agencies “concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.” In a line that could now become prophetic, Gorsuch declared “Maybe the time has come to face the behemoth.”
Another flashpoint may be Gorsuch’s public opposition to assisted suicide. He is the author of a 2000 law journal and 2oo6 book criticizing state laws allowing assisted suicide. Six states currently have such laws. Gorsuch appears to embrace the notion that politicians (unlike judges) can legislate morality. On both of these issues, he may not appeal to some libertarians or civil libertarians.
Gorsuch’s interpretive style works closely with the text of the Constitution or statutes. He has praised Scalia’s jurisprudence in that regard. This includes an emphasis on originalism. He is also known as a strong supporter of religious liberty. He voted in favor of Hobby Lobby and Little Sisters of the Poor in their challenge to the Affordable Care Act’s contraceptive mandate. Gorsuch wrote that the government had transgressed upon “sincerely held religious beliefs.”
Gorsuch has the intellectual chops to help push forward a new conservative legacy on the Court. He could be a rallying point not just for the current conservative justices but could be key in a transformative court with possible replacement of any of the three oldest justices: Ginsburg, Kennedy, and Breyer. All will be in the 80s during Trump’s first term.