President Trump’s Supreme Court Pick Is IN

万得福

Kevin Daley
Legal Affairs Reporter

President Donald Trump has selected Judge Neil Gorsuch of the 10th U.S. Circuit Court of Appeals to succeed the late Justice Antonin Scalia on the Supreme Court.

A conservative stalwart who has served on the federal bench for over decade, Gorsuch became the frontrunner for the appointment among court-watchers in the waning days of the search.

At 49, he could conceivably serve on the Court for over 30 years if confirmed.

Polished Credentials


A stuffy credentialism has pervaded the judicial selection process of late. Each member of the current court attended either Harvard or Yale Law School, and all, with the exception of Justice Elena Kagan, served as federal appeals judges prior to their appointment. Several were clerks to former justices.

In many ways, Gorsuch fits this archetype. He holds a law degree from Harvard Law School and a doctorate in legal history from Oxford, where he was a Marshall Scholar. He held prestigious clerkships, first for Judge David Sentelle on the U.S. Court of Appeals for the D.C. Circuit, then for Justices Byron White and Anthony Kennedy on the Supreme Court.

Gorsuch is also the author of two books. His first book, “The Future of Assisted Suicide and Euthanasia,” was published by Princeton University Press in 2006. He contributed to a second book last year, “The Law of Judicial Precedent,” a treatise on the doctrine of precedent assembled by Black’s Law Dictionary editor Bryan Garner. He is consistently identified as one of the finest writers on the federal bench given his elegant yet unpretentious prose.

“He writes opinions in a unique style that has more verve and vitality than any other judges I study on a regular basis,” District Judge John Kane, a President Jimmy Carter-appointee, told Adam Liptak of The New York Times.




Given his scholarly profile and decade of experience on the 10th Circuit, Gorsuch possesses the intellectual and professional sheen typical of recent nominees.

Scalia’s Heir Apparent?

A panel of legal scholars identified Gorsuch as one of the potential nominees most likely to emulate Scalia scholastically and stylistically. The four-member group produced a paper called “Searching for Justice Scalia: Measuring The ‘Scalia-ness’ of the Next Potential Member of the U.S. Supreme Court,” which surveyed key characteristics to determine which candidates are most likely to emulate Scalia’s jurisprudence and style.

The study measured “Scalia-ness” in three ways: How much the candidate engages with or promotes originalism, Scalia’s preferred interpretive theory, in their opinions; how often they cite Scalia’s non-judicial writings; and how often they write separate opinions. The authors use these metrics to establish a “Scalia Index Score”(SIS) to evaluate each nominee.

Gorsuch received the second highest SIS of the 21 candidates put forward by Trump as potential nominees during the campaign. He was second only to Utah Supreme Court Justice Thomas Lee. He scored particularly well on the originalism metric, but falls in the average range on the other two measures.

His opinion in U.S. v. Games-Perez, in particular, flagged at SCOTUSblog, suggests Gorsuch is a thorough-going Scalia-ite. The opinion channels the late justice to the extent that it looks askance at both judicial reliance on legislative history, and vague guidelines that subvert clear standards, while urging a close and prudential readings of texts.

Friendly to Religious Liberty

Gorsuch participated in a high-profile religious liberty case reviewed by the Supreme Court. He wrote a concurring opinion in the en banc 10th Circuit’s review of Hobby Lobby Stores v. Sebelius, which asked the court to decide if the 1993 Religious Freedom Restoration Act allows a closely held for-profit company to deny its employees contraceptive coverage based on religious objections.

His concurring opinion tracked the problem of complicity, and argued the lower court had given insufficient (and statutorily required) credence to the fact the company’s owners felt any sort of participation in a contraception regime violated their religious beliefs.

He writes:


“And as we have seen, it is not for secular courts to rewrite the religious complaint of a faithful adherent, or to decide whether a religious teaching about complicity imposes ‘too much’ moral disapproval on those only ‘indirectly’ assisting wrongful conduct. Whether an act of complicity is or isn’t ‘too attenuated’ from the underlying wrong is sometimes itself a matter of faith we must respect.”

His opinion was largely vindicated when the Supreme Court found for Hobby Lobby in a 5-4 ruling.

He has also written two dissents criticizing the “reasonable observer” test applied in establishment clause cases, formulated by Justice Sandra Day O’Connor. The purpose of the test is to determine if a government action leaves the average observer with the perception that government is endorsing or disparaging religion.


“Our court has now repeatedly misapplied the ‘reasonable observer’ test, and it is apparently destined to continue doing so until we are told to stop. Justice O’Connor instructed that the reasonable observer should not be seen as ‘any ordinary individual, who might occasionally do unreasonable things, but . . . rather [as] a personification of a community ideal of reasonable behavior.’ Yet, our observer continues to be biased, replete with foibles, and prone to mistake.”

The “reasonable observer” and “reasonable man” tests were favorite targets of Scalia, who saw them as useless for lawyer’s work.

His support for religious accommodations in the context of the Religious Land Use and Institutionalized Persons Act is similarly capacious. He sided with a Native American prisoner seeking access to a sweat lodge in Yellowbear v. Lambert in 2014.

Hostile to the Dormant Commerce Clause

The dormant commerce clause will find no ally in Gorsuch. The theory argues that the Constitution’s explicit grant of authority over interstate commerce to Congress restricts the ability of states to regulate the same, even in the absence of an explicit restriction from Congress. The doctrine has the effect of entrenching federal power over commerce (a vast wellspring of political authority) over and against the states. Dormant commerce clause jurisprudence has been firmly established by the Supreme Court and is prevalent throughout the federal courts.

Though he never expressly contravenes the theory — as it would probably be inappropriate for a circuit judge to do so — he does seem dubious of the idea. For example, in Energy and Environmental Institute v. Epel, he writes:


“Employing what’s sometimes called ‘dormant’ or ‘negative’ commerce clause jurisprudence, judges have claimed the authority to strike down state laws that, in their judgment, unduly interfere with interstate commerce. Detractors find dormant commerce clause doctrine absent from the Constitution’s text and incompatible with its structure.”

Skeptical of the Administrative State

Gorsuch wrote a concurring opinion in a complex immigration case in August 2015, which thoroughly repudiated the Chevron doctrine, which requires courts to submit to a federal agency’s interpretation of an ambiguous statute as long as that interpretation is reasonable. The opinion quickly became something of a cause celebre among critics of the administrative state, who charge that Chevron and its progeny shield vast swaths of agency action from judicial review.

He wrote:


“There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron…permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.”

He added that Chevron was “no less than a judge-made doctrine for the abdication of the judicial duty.”

Democrats Promise Filibuster

Democratic Sen. Jeff Merkley told reporters Monday that he will filibuster any nominee put forward by Trump, except Judge Merrick Garland. Senate Republicans successfully stymied Garland’s nomination for nearly 10 months, after former President Barack Obama selected him to succeed the late Justice Antonin Scalia. Merkley claims most of the Democratic caucus will join him in the effort.

“This is a stolen seat. This is the first time a Senate majority has stolen a seat,” Merkley said. “We will use every lever in our power to stop this.”

“A very large number of my colleagues will be opposed,” he added.

Gorsuch was not considered a controversial nominee when elevated to the 3rd Circuit. He was confirmed to the 10th Circuit on a voice vote with the support of many of the same Democrats who now pledge to stop him.

万得福

President Donald Trump has announced his pick to fill the vacancy in the Supreme Court of the United States, and it's 10th Circuit Court of Appeals Judge Neil Gorsuch. Here are five important facts about Gorsuch:
1. He Detests Judicial Activism
In a 2005 essay for National Review, Gorsuch wrote:

"American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education. This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary...
the politicization of the judiciary undermines the only real asset it has–its independence. Judges come to be seen as politicians and their confirmations become just another avenue of political warfare."

Gorsuch goes on to decry the politicization of the court system, writing that Supreme Court confirmation hearings have become death-matches at which both Republicans and Democrats arrive armed to the teeth for "political warfare."
Gorsuch adds that SCOTUS Justices are now seen as "politicians with robes," even though their role should truly be apolitical.
2. He's a Textualist
After Justice Antonin Scalia's death in February 2016, Gorsuch praised the late jurist, adding:

"Judges should instead strive, if humanly and so imperfectly, 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..."

Examining just one case in which Gorsuch was involved while on the 10th Circuit, his textualism is made abundantly clear.
After the case of United States v. Games-Perez was decided, Miguel Games-Perez petitioned for rehearing en banc. The court ultimately declined. While Gorsuch concurred because of precedent, he also added a lengthy dissent in which he brutally criticized the way in which the law was interpreted in the case.
The case pertained to Miguel Games-Perez owning a gun after having been convicted of a felony, which is against federal law. Gorsuch argued that because the law, as written, is unambiguous in that it requires the defendant to knowingly possess a firearm and also know that one is a felon, Games-Perez should get a fair hearing:
"People sit in prison because our circuit's case law allows the government to put them there without proving a statutorily specified element of the charged crime."
Gorsuch argued that while Games-Perez was "prosecuted under 18 U.S.C. 924(a)(2) for 'knowingly violat[ing]' 922(g), a statute that in turn prohibits (1) a convicted felon (2) from possessing a firearm (3) in interstate commerce...to win a conviction under our governing panel precedent in United States v. Capps...the government had to prove only that Mr. Games-Perez knew he possessed a firearm, not that he also knew he was a convicted felon."
Gorsuch wrote that a "state court judge repeatedly (if mistakenly) represented to him [Games-Perez] that the state court deferred judgment on which his current conviction hinges did not constitute a felony conviction...Given these repeated misstatements from the court itself, Mr. Games-Perez surely has a triable claim he didn't know his state court deferred judgment amounted to a felony conviction."
He added that because of the precedent set in Capps, the government never had to prove Games-Perez knew he was a felon. Gorsuch decried such a precedent because it stands in contradiction to the written text of the law:

"Just stating Capp's holding makes the problem clear enough: it's interpretation--reading Congress's mens rea requirement as leapfrogging over the first statutorily specified element and touching down only at the second listed element--defies grammatical gravity and linguistic logic."

Eighteen pages later, Gorsuch concluded: "Respectfully, I submit, this is a case where we should follow the Court's lead, enforce the law as Congress wrote it, and grant Mr. Games-Perez the day in court the law guarantees him."
3. He Dislikes Federal Overreach
In August 2016, Gorsuch wrote a concurring opinion for a case in which he scorched the "Chevron doctrine." According to The Washington Post, "Chevron" is "the doctrine that provides that courts must defer to permissible agency interpretations of ambiguous statutory language."
Gorsuch wrote:

"There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth...
the framers sought to ensure that judicial judgments “may not lawfully be revised, overturned or refused faith and credit by” the elected branches of government...Yet this deliberate design, this separation of functions aimed to ensure a neutral decisionmaker for the people’s disputes, faces more than a little pressure from Brand X. Under Brand X’s terms, after all, courts are required to overrule their own declarations about the meaning of existing law in favor of interpretations dictated by executive agencies...
Whatever the agency may be doing under Chevron, the problem remains that courts are not fulfilling their duty to interpret the law and declare invalid agency actions inconsistent with those interpretations in the cases and controversies that come before them...That’s a problem for the judiciary. 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."

In his whipping of federal overreach, Gorsuch even quoted Justice Frankfurter: "'...The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions' imposed by the Constitution."
Gorsuch exhibits clear disdain for the accumulation and consolidation of power in the federal government, and for conservatives, that's a win.
4. He's a Staunch Supporter of Religious Freedom
As reported by Eric Citron of SCOTUS Blog:

Followers of the Supreme Court will recognize two recent cases in which Gorsuch participated on the 10th Circuit, Hobby Lobby Stores v. Sebelius and Little Sisters of the Poor Home for the Aged v. Burwell. In Hobby Lobby, Gorsuch wrote a concurrence in the en banc 10th Circuit that sided with the company and its owners. He stressed the need to accept these parties’ own conceptions regarding the requirements of their faith, and held (among other things) that they were likely to prevail on claims that the contraception mandate in the Affordable Care Act substantially burdened their religious exercise in violation of RFRA. This position was largely vindicated in the subsequent decision by the Supreme Court.

Citron goes on to note several other cases which Gorsuch covered, one of which involved a Ten Commandments display:

In Summum v. Pleasant Grove City, in 2007, Gorsuch joined a dissent from denial of rehearing en banc in a case in which the 10th Circuit had limited the ability of the government to display a donated Ten Commandments monument in a public park without accepting all other offers of donated monuments.

Gorsuch has a sterling record of defending religious liberty, especially as it pertains to organizations defending themselves from federal government overreach.
5. He was Easily Confirmed in 2006
The Denver Post writes that when Neil Gorsuch was appointed to the 10th Circuit Court of Appeals in 2006, his "nomination was approved on a voice vote" in the Senate. No official tally was taken because Gorsuch's nomination "wasn’t deemed controversial."
Considering his smooth confirmation a decade ago, his appointment to the Supreme Court of the United States should be equally uncontroversial. However, as Gorsuch wrote in his essay for National Review, SCOTUS nomination hearings have become a political war zone. Moreover, after Republicans stalled Obama nominee Merrick Garland for ten months following the death of Justice Antonin Scalia, expect a contentious process.
BONUS! He Likes the Outdoors
According to Politico, Gorsuch, 49, "is an outdoorsman who fishes, hunts, and skis." A man who hunts is going to be a friend to the Second Amendment.
Conclusion
There are always reasons to be cautious about allegedly conservative, textualist SCOTUS nominees. Conservatives have been burned in the past--most recently by Chief Justice John Roberts, who twice rewrote the law to accommodate the Affordable Care Act. However, after an examination of Judge Neil Gorsuch's legal record, it appears that he's not only eminently qualified for a seat on the bench, but also a meticulous jurist who will stick to the letter of the law, regardless of his own opinions.
As Gorsuch himself said: "If you're going to be a good and faithful judge, you have to resign yourself to the fact that you're not always going to like the conclusions you reach. If you like them all the time, you're probably doing something wrong."