In nominating Judge Neil Gorsuch to the Supreme Court, President Donald Trump has, somewhat against character, gone with a safe choice. Gorsuch has more than a decade of experience as a federal appellate judge, an impeccable academic record, and a long history of fidelity to the written law, even when the text leads to conclusions with which he personally disagrees. When Gorsuch was nominated by George W. Bush to the Tenth Circuit (his current position), his confirmation sailed through the Senate on a unanimous voice vote.
Naturally, Senate Democrats are lining up to denounce Gorsuch. Within minutes of the president’s nomination, Senate minority leader Charles Schumer announced a filibuster. But even Schumer could not bring himself to make the standard allegation that Gorsuch is out of the “mainstream.” Instead, Schumer merely argued that “the burden is on Judge Neil Gorsuch to prove himself to be within the legal mainstream.” It may seem a little odd to filibuster preemptively a nominee who has not yet had a chance to satisfy that burden, but then Schumer probably had no choice. With a liberal mantra of “resistance” to all things Trump, anything less than a filibuster would antagonize the Democratic base.
In the end, however, it will be difficult for Democrats to derail the nomination. That is bracing news for those who hope to see a restoration of constitutional checks and balances. Gorsuch was included on the list of potential Supreme Court nominees that Trump compiled during the campaign with help from conservative stalwarts at the Heritage Foundation and Federalist Society. At 49, Gorsuch is among the youngest of recent Supreme Court nominees, and he is well-positioned to become an intellectual leader in the mold of the late Justice Antonin Scalia, whose seat he would fill.
National Review’s Ed Whelan describes Gorsuch as “a brilliant jurist and dedicated originalist and textualist.” Among other things, that means that he strives to interpret the provisions of the Constitution as they would have been understood by those who ratified them. In a case last year, Gorsuch observed that the Constitution “isn’t some inkblot on which litigants may project their hopes and dreams . . . but a carefully drafted text judges are charged with applying according to its original public meaning.”
Gorsuch has received high marks for his defense of religious liberty. In 2013, he agreed with Hobby Lobby that the Obamacare mandate to provide employees insurance coverage for abortifacient drugs and devices violated the company’s religious rights under federal law—a decision that was upheld by the Supreme Court. Gorsuch also sided with the Little Sisters of the Poor in its case against Obamacare’s contraceptive mandate.
Importantly, Gorsuch has expressed concern about the unchecked growth of the Administrative State; for example, calling on the Supreme Court to reconsider its insistence that judges defer to an administrative agency’s interpretation of the law—the “Chevron doctrine” named after a 1984 case involving the oil company. He has also suggested that there ought to be limits to Congress’s ability to delegate legislative power to executive agencies. Such limits exist in theory but haven’t been enforced by courts.
Gorsuch has a “strong and balanced record” on criminal law and procedure, according to Whelan. He has written opinions upholding Fourth Amendment rights against unreasonable searches and seizures but has also insisted that the Fourth Amendment be applied in a manner that “takes a realistic view of human capacities and limitations.” In an address before the Federalist Society, Gorsuch raised alarms about the overcriminalization of federal law, a trend that means “prosecutors can almost choose their targets with impunity.”
Though there will be a filibuster, Gorsuch will likely be confirmed. Senate majority leader Mitch McConnell may be able to peel away enough Democrats to reach 60 votes, but failing that, Republican Senators will be inclined to abolish the filibuster for Supreme Court nominees, as the previous Democratic majority did for all lower-court appointments. Indeed, some Democrats are questioning the wisdom of a filibuster at this point, hoping to keep their powder dry for a future confirmation battle—a likely event, given the ages of liberal justices Ruth Bader Ginsburg (83) and Stephen Breyer (78), and swing vote Anthony Kennedy (80).
In the near term, the Court will simply revert to its previous balance, with justices evenly divided between liberal and conservative blocs and Kennedy casting the pivotal vote. The creation of a durable conservative coalition on the high court will depend on President Trump’s choice to fill the next vacancy. But the nomination of Neil Gorsuch is a great start.
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