It’s Gorsuch! Trump Picks Stalwart Conservative to Replace Antonin Scalia on SCOTUS

According to SCOTUS Blog, "[O]ne study has identified him as the most natural successor to Justice Antonin Scalia on the Trump shortlist."

By Rachel Alexander Published on January 31, 2017

As predicted recently, President Donald Trump selected Judge Neil Gorsuch to replace the late Antonin Scalia on the Supreme Court. Gorsuch, 49, currently serves on the United States Court of Appeals for the Tenth Circuit.

Trump said he had kept his promise to appoint someone in the mold of Scalia. Of the 21 potential nominees Trump was considering, Gorsuch was one of the most conservative. While the final three contenders were all conservative originalists in the style of Scalia, he was probably the most like Scalia. According to SCOTUS Blog, “[O]ne study has identified him as the most natural successor to Justice Antonin Scalia on the Trump shortlist, both in terms of his judicial style and his substantive approach.”

Gorsuch said in a speech last spring that he has tried to follow the lead of Scalia.

Gorsuch said in a speech last spring that he has tried to follow the lead of Scalia. Like Scalia, Gorsuch also adheres to the conservative legal tenet of textualism, meaning he only considers the language of a law being reviewed, not legislative intent or the consequences of the law.

While Gorsuch was confirmed to the appellate court by the Senate without opposition in 2006, and rated “unanimously qualified” by the American Bar Association at the time, he has since authored several opinions that will engender Democratic opposition to his nomination.

Background

Gorsuch is the son of the late Anne Irene McGill Gorsuch Burford, who was the first female administrator of the Environmental Protection Agency, serving under President Ronald Reagan. He wrote for the student newspaper while attending Columbia University, the Columbia Daily Spectator, then started his own conservative-leaning newspaper, The Fed.

He received a Truman Scholarship to Harvard Law School, and then a Marshall Scholarship to Oxford University, where he received a Doctor of Philosophy in Law. He clerked for Supreme Court justices Byron White and Anthony Kennedy in 1993 and 1994.

He became an associate, then partner, with the prestigious Washington, D.C. law firm of Kellogg, Huber, Hansen, Todd, Evans & Figel. He worked in the Department of Justice briefly in the mid-2000s. President George W. Bush nominated him for the Tenth Circuit in 2006 and the Senate confirmed him on a voice vote.

Gorsuch enjoys the outdoors, especially skiing and fly fishing. Married with two daughters, he raises horses, chickens, and goats. His name is of English origin — though autocorrect changes the spelling to “Grouch.”

Notable Decisions

Gorusch record on the circuit court is solidly conservative. SCOTUS Blog notes that his writing is comparable to Scalia’s. “Gorsuch’s opinions are exceptionally clear and routinely entertaining.”

He defended religious freedom in Burwell v. Hobby Lobby Stores, Inc. and Little Sisters of the Poor Home for the Aged v. Burwell, later consolidated into Zubik v. Burwell. He held that Obamacare’s contraceptive mandate cannot force employers who object to contraceptives on religious grounds to provide them without a co-pay.

Justin Marceau, a professor at the University of Denver’s Sturm College of Law, described him as “a predictably socially conservative judge who tends to favor state power over federal power.”

In Summum v. Pleasant Grove City, Gorsuch dissented, opining that displaying the Ten Commandments did not require the government to include other offered monuments. He issued two dissenting opinions objecting to the “reasonable observer” test for establishment clause cases, since it makes it too likely to find impermissible endorsements of religion by the government when none was intended.

Gorsuch supports states rights. Justin Marceau, a professor at the University of Denver’s Sturm College of Law, described him as “a predictably socially conservative judge who tends to favor state power over federal power.” Other opinions where he shares Scalia’s legal positions include supporting the death penalty and the Second Amendment.

He gave a speech at the Federalist Society’s National Lawyers Convention in 2013 where he cautioned against over-criminalization. This has become a concern under the Obama administration, as an alarming number of DOJ prosecutors have targeted elected Republican officials. He asked, “[W]hat happens to individual freedom and equality when the criminal law comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?”

Areas of Concern for Conservatives

There has been some speculation that Gorsuch may not be conservative on some social issues like abortion and the LGBT agenda. He attends a liberal Episcopalian church in Boulder, Colo., that has actively promoted LGBTQ viewpoints. However, he reportedly attends the church because his wife is Episcopalian, and it is the only non-college Episcopalian church in the small liberal city.

There doesn’t appear to be any evidence that he shares the liberal viewpoints of his church. In a 2005 article for National Review, he wrote,

[R]ather than use the judiciary for extraordinary cases … 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.

He went on, “Liberals may win a victory on gay marriage when preaching to the choir before like-minded judges in Massachusetts. But in failing to reach out and persuade the public generally, they invite exactly the sort of backlash we saw in November when gay marriage was rejected in all eleven states where it was on the ballot.”

He wrote a book condemning the legalization of euthanasia, entitled The Future of Assisted Suicide and Euthanasia. This is evidence he is probably pro-life.

Neil Gorsuch will be a trustworthy successor to Scalia should he be confirmed. The chances are good, considering the Republicans control the Senate and his background has been far less attacked than some of Trump’s other potential nominees, like William Pryor, Jr.

 

Follow Rachel on Twitter at Rach_IC

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