President Trump announced his pick to replace the late Justice Antonin Scalia, Judge Neil Gorsuch, who has sat on the U.S. Court of Appeals for the 10th Circuit. He was the conservative legal establishment’s top pick, someone whom they imagine will follow in the originalist philosophy of Scalia. The Post reports:
Like Scalia, Gorsuch is a proponent of originalism — meaning that judges should attempt to interpret the words of the Constitution as they were understood at the time they were written — and a textualist who considers only the words of the law being reviewed, not legislators’ intent or the consequences of the decision. . . .There is a family connection to Republican establishment politics, and service in the administration of George W. Bush. There is a glittery Ivy League résumé — Columbia undergrad, Harvard Law — along with a Marshall scholarship to Oxford. There is a partnership at one of Washington’s top litigation law firms and a string of successful cases.There is a Supreme Court clerkship; Gorsuch was hired by Justice Byron White, a fellow Colorado native, who shared him with Justice Anthony M. Kennedy.
In other words, Trump picked perhaps the safest candidate — one whom conservatives will rally to defend, someone whose credentials are hard to question and who will be impressive in his hearing. Democrats were prepared to oppose any nominee, considering this to be a “stolen” seat taken from President Obama by a GOP Senate that refused to take up his nomination. Given Gorsuch’s credentials, that may be about the only reason to filibuster him, as Democrats threaten to do.
Conservatives are nothing short of ecstatic. “Gorsuch is a home run,” said Todd Gaziano, executive director of the D.C. office of the libertarian-leaning Pacific Legal Foundation. “The liberals in the Senate would run a serious risk if they unreasonably delay and filibuster his confirmation. It won’t prevent the confirmation of Judge Gorsuch, but if they cause the majority to end the filibuster for Supreme Court nominations, it will make the next nomination harder to stop.” His point is well-taken.
Conservative lawyer and former Supreme Court clerk Ed Whelan raved as well. “Gorsuch is a brilliant jurist and dedicated originalist and textualist. He thinks through issues deeply. He writes with clarity, force, and verve. And his many talents promise to give him an outsized influence on future generations of lawyers.”
John Yoo, former Justice Department lawyer, also praised the pick. “It is also hard to see how the Democratic Senate could ‘Bork” Gorsuch. He hasn’t directly ruled on Roe v. Wade, unlike Judge William Pryor. He is a fabulous writer and a close adherent to the constitutional text and the Framers intent.”
Minority leader Sen. Charles E. Schumer (D-N.Y.) was having none of it. In a blistering statement, he declared, “Now more than ever, we need a Supreme Court Justice who is independent, eschews ideology, who will preserve our democracy, protect fundamental rights, and will stand up to a President who has already shown a willingness to bend the Constitution.” He added, “The Senate must insist upon 60-votes for any Supreme Court nominee, a bar that was met by each of President Obama’s nominees. The burden is on Judge Neil Gorsuch to prove himself to be within the legal mainstream and, in this new era, willing to vigorously defend the Constitution from abuses of the Executive branch and protect the constitutionally enshrined rights of all Americans.”
Democrats might, however, consider the context in which Gorsuch has been nominated. The most pressing constitutional issue of our time remains Trump’s disregard for legal norms and misuse of presidential power. Gorsuch has been a stern critic of deference to the executive branch’s interpretation of statutes (the so-called Chevron standard). In that regard, a respected justice able and willing to confront executive power and insistent on the primacy of congressional law-making could be critical to navigating through the Trump years. That, for what is worth, is the thinking of some liberal legal heavyweights, including Neal Katyal, President Obama’s acting solicitor general.
It remains to be seen how this will play out. Republicans are likely to be united in support of him. If eight Democrats (likely the red-state senators up for reelection in 2018) break with the Democrats, the rest of the Democrats can attempt to filibuster — but face defeat on cloture. Alternatively, Democrats might all stick together, forcing the so-called “nuclear option,” the eradication of the filibuster for Supreme Court nominees. In a sense everyone would be served by the first option — liberals can make their principled stand, red-state Democrats can protect themselves, Gorsuch gets on the court and the filibuster remains. Of course, simply because that makes sense does not guarantee this will be the chosen approach.
The Gorsuch pick is Trump’s first sensible, standard-fare conservative decision and will gain him points, to put it mildly, with Republicans. Perhaps doing something effective, popular and smart will prove exhilarating — and teach him that less chaos, more winning would be a better course to chart.