THE NOMINATION OF NEIL GORSUCH
With the nomination of Neil Gorsuch to the United States Supreme Court, President Donald Trump not only fulfilled yet another campaign promise (to appoint a conservative to the Court) but showed Washington that he could find the strike zone in American politics.
Up until now Trump has unnerved many Republicans as a pitcher who seemed only to throw at the heads of batters. As bases filled up with badly botched press conferences and executive order rollouts, there was an audible rumbling among members of Congress about the course of the administration. This nomination will quiet some of that rumbling.
Gorsuch is unassailable in his experience, intellect, and demeanor. What is left is his conservative view of the law, but he is not the type of nominee who can be easily “Borked.” In other words, to return to baseball parlance, Gorsuch is a heater right down the middle.
With Gorsuch, conservatives get a nominee with the type of intellectual chops that could fill the void left by Scalia. At 49, he can serve for decades and could prove to be a rallying point for a new conservative Court if Trump replaces any of the three oldest justices: Ginsburg, Kennedy, and Breyer. All three will be in their 80s during Trump’s first term. While Gorsuch will not move the center of gravity on the court in a swap of a conservative for a conservative, any one of these justices could leave a transformed court in their wake if they leave during the Trump presidency.
Gorsuch is the closest you can get to conservative aristocracy in Washington. He is the son of Anne Gorsuch Burford, the first female head of the United States Environmental Protection Agency from 1981 to 1983. He spent time in Washington, D.C. and attended Georgetown Preparatory School. He studied at Columbia, Harvard and Oxford.
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. That connection as a former Kennedy clerk could be highly useful in securing the vote of the perennial swing voter of the court.
Gorsuch is largely an unknown on abortion. However, he appears to accept that legislators can legislate to achieve moral ends. He wrote a law review article in 2000 and a book in 2006 that criticized assisted suicide laws. Some six states currently have such laws.
Gorsuch, who is an Episcopalian and would be the only Protestant on the Court, is also very strong on religious freedom. Indeed, that may be an area that could become the very signature of his tenure on the Court. 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 could also prove highly influential on federalism. His writings reveal a more firm position on states rights than some members like Chief Justice John Roberts, who is still blamed for effectively gutting federalism in the first Obamacare ruling (by finding a violation but then upholding the law under a tax theory despite that violation). Indeed, Gorsuch could prove a driving force to resume the federalism revolution that we saw under the late Chief Justice William Rehnquist.
The most interesting aspect of Gorsuch’s jurisprudence is his view of agencies — a view that would produce an immediate change on the Court as a deviation from Scalia’s voting record. 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. Gorsuch 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.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and teaches a course on the Constitution and the Supreme Court.