Fulfilling what was arguably his most consequential campaign promise, President Donald Trump nominated Neil Gorsuch, a federal appeals judge in Denver, to the Supreme Court seat of the late Antonin Scalia, who died last February.
The announcement during a prime-time broadcast Tuesday night, came amid a barrage of protests, some legal challenges and a shake-up at the Department of Justice over Trump’s use of executive power to stop refugees and citizens from seven Muslim-majority countries from entering the United States.
Against that backdrop, questions about the court’s independence and role as a check on the executive branch are sure to dominate Gorsuch’s confirmation hearing, which will find Democrats on the offensive and under increasing pressure to block or deny the nomination outright ― much like Republicans obstructed the nomination of Merrick Garland, the highly respected appeals court judge President Barack Obama chose to fill the Supreme Court vacancy.
If confirmed, Gorsuch, 49, would bring to the bench a conservative record that will be forever measured against that of Scalia, a towering firebrand of legal conservatism whose death last year forced Trump to issue not one but two lists of potential nominees he’d choose if elected. The lists ― largely assembled with the help of conservative brain trusts ― helped assuage supporters’ fears that Trump might not nominate judges who are conservative enough.
Conservatives need not worry. Gorsuch is an intellectual rising star ― a well-spoken and eloquent writer who enraptures Republican and Libertarian lawyers and law students who come to see him at conferences organized by the Federalist Society, a group that helped Trump put together his Supreme Court wish list.
In his 10 years as a judge, Gorsuch has amassed a paper trail that, according to one analysis, finds him in close ideological alignment with Scalia ― based on such things as observance of the doctrine of originalism, citations to Scalia’s work and the judge’s propensity to write separately or dissent to further flesh out distinguishing views.
One key concurring opinion that earned Gorsuch high praise from conservative commentators was in an immigration case decided last year in which Gorsuch staked out a strong position against the administrative state ― and the way the Supreme Court has made it easier for agencies to interpret laws that judges are better suited to interpret.
“That’s a problem for the judiciary,” Gorsuch wrote in Gutierrez-Brizuela v. Lynch. “And it is a problem for the people whose liberties may now be impaired not by an independent decisionmaker seeking to declare the law’s meaning as fairly as possible — the decisionmaker promised to them by law — but by an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day.”
On abortion rights, an issue on which Trump is deeply indebted to religious and family-values voters who staunchly oppose Roe v. Wade ― Gorsuch doesn’t exactly have a judicial record, even though he has written at length on the moral and legal complexities of legalizing assisted suicide. In his book on the subject, he examines Roe to make his case.
On that score, Gorsuch’s choice is likely to underwhelm the broad swath of voters who took the president at his word when he vowed to appoint judges who would oppose abortion rights. These same supporters may take some comfort: His decisions on religious issues have served as precursors to some of the Supreme Court’s most controversial in recent years ― including those involving the clash between religious freedom and contraceptive access under the Affordable Care Act.
In some ways, Gorsuch is the prototypical well-groomed Supreme
Court nominee. He is the son of the late Anne Gorsuch Burford, a Republican
appointee of President Ronald Reagan to lead the Environmental Protection
Agency. He was educated at Columbia, Harvard Law School and Oxford, and he began his legal career with prestigious clerkships at the U.S. Court of Appeals for the D.C. Circuit and later at the U.S. Supreme Court.
There, he clerked for retired Justice Byron White and then for Justice Anthony Kennedy, the court’s perennial swing vote. His elevation to the Supreme Court would mark the first time a former clerk and his former boss have become colleagues on the nation’s highest bench ― a dynamic that could create interesting alliances or divisions in hotly contested cases.
After that distinguished start, Gorsuch went on to work in private practice for nearly a decade before he did a short stint at the Department of Justice, from which President George W. Bush plucked him for a federal judgeship at the U.S. 10th Circuit Court of Appeals, where he has served since.
At Tuesday’s announcement, Trump cracked a joke about the intrigue surrounding Gorsuch’s Supreme Court nomination, which was preceded by a “Celebrity Apprentice”-type schtick. “Was it a surprise?” he asked. Then he urged bipartisan support for his nominee: “I only hope that both Democrats and Republicans can come together for only once for the good of the country.”
Gorsuch thanked the president and said that the role of a Supreme Court justice does not include messing with “the work of the people’s representatives.”
“A judge who likes every outcome he reaches is likely a bad judge,” he said as his wife, Louise, stood by his side.
Reflecting last year on the life and times of Scalia, whose widow was at Tuesday’s annoucement, Gorsuch told a law school audience how he viewed the role of judges and judging.
They are “men and women,” he said, “who do not thrust themselves into the limelight but who tend patiently and usually quite obscurely to the great promise of our legal system ― the promise that all litigants, rich or poor, mighty or meek, will receive equal protection under the law and due process for their grievances.”