President Donald Trump has selected Colorado federal appeals court judge Neil Gorsuch as his Supreme Court nominee this evening, opting for a highly credentialed favorite of the conservative legal establishment to fill the opening created last year by the death of Justice Antonin Scalia.
Gorsuch prevailed over the other finalist, Thomas Hardiman of Pennsylvania, also a federal appeals court judge, and Trump announced the nomination at a televised prime-time event at the White House.
Gorsuch, 49, and Hardiman, 51, emerged from a list of 21 as Trump’s most likely choices. A third person on the shortlist — U.S. Circuit Judge William H. Pryor Jr. of Alabama — saw his chances diminish as some Senate Republican leaders have said his confirmation would be difficult.
By comparison, Gorsuch was confirmed a decade ago to the U.S. Court of Appeals for the 10th Circuit in Denver on a voice vote.
Gorsuch is seen as a less bombastic version of Scalia; he also believes in an “originalist” interpretation of the Constitution and would seem destined to be a solidly conservative vote on the ideologically split court. But friends and supporters describe Gorsuch as being more interested in persuasion than Scalia, who was just as likely to go it alone as to compromise.
Senate Democrats have promised a vigorous battle, believing that Republican colleagues “stole” the court opening by refusing to hold even a hearing on former president Barack Obama’s nominee for Scalia’s seat, Judge Merrick Garland. His nomination withered.
Some Democrats have pledged to try to block a vote on Trump’s nominee. “I won’t be complicit in this theft,” Sen. Jeff Merkley (D-Ore.) wrote in an email to supporters. “There is only one person in America who is a legitimate selection: Judge Merrick Garland.”
Other Democrats aren’t likely to take such a bold move. But there were already signs that things won’t be particularly cozy: Trump invited senior Democratic senators to the White House for a reception to meet his Supreme Court pick, but they declined the invitation, according to senior aides.
Gorsuch would be the youngest Supreme Court justice since Clarence Thomas was confirmed in 1991. But Gorsuch has been on the bench for a decade, and at his 2006 investiture ceremony, friends joked that his prematurely gray hair was fitting.
“When Neil came to our firm in 1995 he had gray hair,” said one of his law partners, Mark C. Hansen. “In fact, he was born with silver hair, as well as an inexhaustible store of Winston Churchill quotes.”
Indeed, Gorsuch came equipped for the ultimate judicial elevation.
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.
Kennedy stood by that day in Denver to administer the judicial oath, and if Gorsuch is confirmed, Kennedy would become the first justice to sit with a former clerk on the Supreme Court’s mahogany bench.
But those who know Gorsuch and have studied his decade of solidly conservative opinions on the Court of Appeals say he more resembles the man he would replace — the late Justice Scalia — than the more moderate Kennedy.
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.
Critics say that those neutral considerations inevitably lead Gorsuch to conservative outcomes, a criticism that was also leveled at Scalia.
Gorsuch said in a speech last spring that as a judge he had tried to follow Scalia’s path.
“The great project of Justice Scalia’s career was to remind us of the differences between judges and legislators,” Gorsuch told an audience at Case Western Reserve University School of Law in Cleveland.
Legislators “may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future,” Gorsuch said. But “judges should do none of these things in a democratic society.”
Instead, they should use “text, structure and history” to understand what the law is, “not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.”
Two recent studies have identified Gorsuch as the federal judge on Trump’s list of potential nominees most in tune with Scalia. And liberal Justice Elena Kagan is among many who have praised Gorsuch’s lucid and occasionally lyrical writing style.
But those who know him say he lacks Scalia’s combustible, combative style.
“He has very strong opinions, but he just treats people well in every context,” said Melissa Hart, a University of Colorado law professor. She is a Democrat who clerked for former Justice John Paul Stevens and knows Gorsuch because he has taught judicial ethics, legal writing and antitrust law at the school.
The nominee is an Episcopalian, and would be the court’s only Protestant. There are five Catholic and three Jewish members.
Gorsuch was born in Colorado and lives outside of Boulder with his wife, Louise, whome he met while at Oxford, and two daughters. He is a fan of outdoor sports — fly-fishing and rowing — and said in the speech at Case Western Reserve that he was skiing when he received a phone call with the news of Scalia’s death last February.
But he spent formative years in Washington and graduated from Georgetown Prep, the imposing private school on Rockville Pike in North Bethesda. He also witnessed firsthand how difficult Washington politics can be.
His mother was Anne Gorsuch Burford, a lawyer and conservative Colorado legislator who was picked by President Ronald Reagan as the first woman to head the Environmental Protection Agency. Her tenure was short and rocky: She clashed with environmentalists and was cited for contempt of Congress in 1982 for refusing to turn over subpoenaed agency documents relating to hazardous waste sites. Although she was following the legal advice of the Justice Department, Burford was forced to resign when the administration gave up the fight. She died in 2004.
After his Supreme Court clerkship, Gorsuch joined the D.C. law firm of Kellogg Huber Hansen Todd Evans & Figel, where he developed a taste for litigation and eventually became a partner. He helped secure what his former partner Hansen said was the largest antitrust award in history and won praise for his courtroom style.
After Gorsuch successfully represented a gravel pit owner in Prince George’s County, Md., Hansen said, associates reported a female juror approaching Gorsuch with praise: “You’re Perry Mason.”
After a short stint as a high-ranking official in the Department of Justice, Gorsuch was nominated to the appeals court by Bush. He sailed through on a voice vote in the full Senate and took his seat on the Denver-based court in August 2006.
Gorsuch is popular with current Supreme Court justices, and his clerks regularly are hired for a term on the high court, not just by conservatives but also by liberals such as Kagan and Justice Sonia Sotomayor.
On the appeals court, Gorsuch has not been called upon to consider two hot-button social issues that may come before the Supreme Court: same-sex marriage and abortion.
After a federal judge in Utah struck down that state’s prohibition on same-sex marriage, Gorsuch was not a member of the 10th Circuit that upheld the decision. It was one of the cases that eventually led to the Supreme Court deciding marriage was a fundamental right that could not be denied gay couples.
Likewise, Gorsuch has not ruled on abortion. But activists on both sides of the issue believe they know where he stands. They point to language in his book “The Future of Assisted Suicide and Euthanasia,” in which he opines that “all human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong.”
Additionally, his rulings on behalf of those who challenged the Obamacare mandate that employee insurance coverage provide all approved contraceptives seemed instructive. He noted the provision would require the objecting businesses to “underwrite payments for drugs or devices that can have the effect of destroying a fertilized human egg.”
Gorsuch’s opinions favoring the owners of the Hobby Lobby craft stores and a nonprofit religious group called Little Sisters of the Poor took the same sort of broad reading of the Religious Freedom Restoration Act as the Supreme Court’s conservative majority.
In Gorsuch’s words, the law “doesn’t just apply to protect popular religious beliefs: it does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve as a refuge of religious tolerance.”
Gorsuch has also called for reconsideration of a long-standing Supreme Court decision that is little known to the public but vitally important to the functioning of the federal government.
The “Chevron deference” means that courts should grant wide leeway to executive branch agencies when they reasonably interpret acts of Congress that are ambiguous. Some conservatives have said that gives too much power to the executive branch. Liberals worry that weakening the deference would allow courts to routinely rule against the party in power.
In the immigration case Gutierrez-Brizuela v. Lynch, Gorsuch said the deference had gone too far.
It allows “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,” Gorsuch wrote. “Maybe the time has come to face the behemoth.”
Hart, the Democratic law professor, said she resents what Republicans did on the Garland nomination but does not believe there is a “principled reason to block” Gorsuch.
“He will have a strong influence on the court because he’s a very persuasive writer,” she said. “That’s a little scary, but it’s not disqualifying.”
(c) 2017 The Washington Post – Robert Barnes