While half of America is reeling from the repercussions of President Trump’s first week in office, the Trump train moves on—with the announcement on Tuesday night that Neil Gorsuch, the conservative federal judge from the 10th Circuit Court of Appeals in Denver, as the president’s pick for the vacant Supreme Court seat.
Trump maintained throughout his campaign that he wanted a judge in the Antonin Scalia mold. Among the three frontrunners, Gorsuch scored highest on the “Scalia Index,” a study conducted by researchers at the Walter F. George School of Law that measures pre-nominees’ judicial record and assesses it against variables that could be attributed to the late justice. The index has three criteria in which to measure likeliness to emulate Scalia:
- Originalism, a strict reading of the Constitution as written;
- Textualism, an equally strict reading of statutes rather than legislative history; and
- The number of times a judge writes separately from the majority to amplify his or her views—something Scalia did regularly.
President George Bush nominated Gorsuch to the 10th Circuit in 2006 and the Senate in a voice vote confirmed him. Gorsuch clerked for Judge David B. Sentelle on the United States Court of Appeals for the D.C. Circuit and then for Justices Byron White and Anthony Kennedy on the Supreme Court. He attended Harvard Law and has a Ph.D. from Oxford, where he was a Marshal Scholar.
Many call Gorsuch Scalia’s ideological twin and the most natural replacement for Scalia. Like Scalia, Gorsuch is both an originalist and a textualist, and has a stylistic flair to his writing. Gorsuch has stated that judges should strive “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.” A quote many believe to be vintage Scalia.
Like Scalia, Gorsuch believes criminal laws should be clear and interpreted in favor of defendants, even if that hurts government prosecutions. He is unconvinced of efforts to eliminate religious expression from public spaces, like Scalia; and he does not like the dormant commerce clause, like Scalia.
Gorsuch has not written on abortion. Based on his writings on euthanasia, however, he may be against abortion being a federal issue.
Gorsuch is known as a staunch defender of religious liberties. He sided with Christian employers and religious organizations in the Burwell vs. Hobby Lobby and Little Sisters of the Poor Supreme Court cases. The plaintiffs argued for an exemption from the contraception mandate in President Obama’s signature health care legislation, the Affordable Care Act, due to religious beliefs. In the Hobby Lobby case, Gorsuch wrote, “The ACA’s mandate requires them to violate their religious faith by forcing them to lend an impermissible degree of assistance to conduct their religion teaches to be gravely wrong.”
Shaping the Supreme Court
Although replacing Scalia would not swing the court ideologically from where it was a year ago, it would put conservatives one seat short of a commanding majority. With the seat filled, Anthony Kennedy once again would be the man in the middle—traditionally siding with conservatives in most cases, but occasionally with liberals on issues such as abortion, gay rights and affirmative action.
Trump hopes to have the seat filled in time for the court’s April sitting, the last of the 2016 term, when several controversial cases could be considered involving issues as transgender rights and religious liberty. Many Democrats fear that Trump wants the high court to be mostly conservatives, willing to roll back precedents on issues such as civil rights, abortion, environmental protection and government regulations.
Gorsuch is likely to face heated opposition from Democrats in the Senate after the majority blocked former president Barack Obama’s choice, Merrick Garland. Democrats have vowed revenge and unless Trump can win over eight of them, Gorsuch could be stalled. Trump, however, has endorsed changing the Senate’s rules and eliminating the 60-vote threshold needed in favor of a simple majority for confirmation.
The Battle Ahead
Trump’s decision to move up the timeline and announce his nomination for the Supreme Court is vintage Trump—political deflection from the worldwide criticism, lawsuits and protests over his temporary travel ban from Muslim countries. That order includes a 90-day ban on travel to the United States by citizens of Syria, Iraq, Iran, Sudan, Libya, Somalia and Yemen, as well as a 120-day suspension of the U.S. refugee program.
The American Civil Liberties Union (ACLU) announced Saturday evening that a federal court in New York had issued an emergency stay on Trump’s executive order banning immigration. The ACLU’s associated class action argues that Trump’s executive order violates a 1965 law that banned discrimination in immigration based on national origin. The ban also tests the First Amendment’s Establishment Clause that “one religious denomination cannot be officially preferred over another.”
The travel ban gives Democrats even more incentive to fight Trump’s Supreme Court nomination. Gorsuch getting on the bench at 49 years old ensures another conservative could serve on the Supreme Court for a quarter century. However, his appointment would not change the court ideologically, which may cause Democrats to hold their real firepower for the next anticipated vacancy. Kennedy is 80 years old, Ruth Bader Ginsburg is 83 and Stephen Breyer is 78. One or more retirements would give the president an opportunity to shift the court to the right.
Marc Lamber and James Goodnow https://lambergoodnow.com/legalcommentator/ are national legal analysts and attorneys for the law firm Fennemore Craig.
The views expressed in guest commentaries are those of the author and are not the views of the Arizona Capitol Times.