Why the Senate Should Confirm Neil Gorsuch

On January 31, 2017, Donald Trump nominated Neil Gorsuch for a seat on the United States Supreme Court. President Trump announced his selection during a highly suspenseful affair in the White House’s East Room. Gorsuch’s nomination is somewhat surprising; he is a descendant of the D.C. establishment that Trump vilified so intensely while on the campaign trail. Gorsuch’s mother was the first female EPA director under Ronald Reagan and he himself attended an elite college preparatory school in D.C before earning degrees from two Ivy League institutions.

Judge Gorsuch currently sits as a judge on the United States Court of Appeals for the 10th Circuit, located in Denver, Colorado. Gorsuch is the youngest nominee to the Supreme Court in 25 years and his resume features exceptional legal and academic credentials and achievements. He graduated from Columbia University with honors, was named a Truman Scholar at Harvard Law School, and earned a doctorate in legal philosophy while a Marshall Scholar at Oxford University. Gorsuch went on to clerk for Judge David Sentelle, a widely respected conservative appellate judge, as well as Byron White and Anthony Kennedy, two Supreme Court Justices. After working in the private sector, Gorsuch served in the Justice Department during George W. Bush’s second term. During his tenure at the Justice Department, Gorsuch authored a well-received book addressing the propriety of state laws banning assisted suicide.

Gorsuch’s opinions are exceptionally clear, measured, and incisive. Indeed, the consensus in the legal community is that his entertaining prose enlivens even the most mundane judicial subjects. By all measures, Judge Gorsuch is a keen legal mind and is well qualified for a position on our nation’s highest court. Indeed, the American Bar Association’s standing committee on judicial appointments is expected to give him the highest possible rating later this month.

Notwithstanding this reality, Senate Minority Leader Chuck Schumer (D-NY) released the following statement after President Trump’s announcement:

“Now, more than ever, we need a Supreme Court Justice who is independent, eschews ideology, who will preserve our democracy, protect fundamental rights…and stand up to a President who has already shown a willingness to bend the constitution. The burden is on Judge Gorsuch to prove himself to be within the legal mainstream.”

Mr Schumer’s standards are easily met by Judge Gorsuch; anyone who has thoroughly canvassed Gorsuch’s record can see that he fits this description to the letter. Moreover, it is uncertain that Judge Gorsuch’s legal philosophy would consistently produce decisions disagreeable to liberals.

Neil Gorsuch resembles Antonin Scalia in that he is an originalist and textualist: he believes that the constitution’s dictums should be interpreted as the founders originally understood them linguistically. Moreover, Gorsuch is of the opinion that judges ought to place their sole focus on the word of the law. Judges should not effectuate a political agenda or write decisions that reflect their moral perception of which outcome is more preferable; in Gorsuch’ view, judges should interpret laws not make them.

Neither of these stances lies outside the legal mainstream. Chief Justice Roberts, Justice Alito, and Justice Thomas are all committed originalists and textualists. During their respective confirmation hearings, no one disputed the fact that their legal views were conventional. While it is true that Robert Bork, President Reagan’s original pick for the seat later filled by Anthony Kennedy, was rejected by the Senate because his views were unacceptable, it is important to remember just how extreme Bork was. Robert Bork was also an originalist. Unlike Mr Gorsuch, however, he emphasized the specific intention behind a provision as opposed to the provision’s objective linguistic meaning. As a result, Bork’s interpretation suggested that race-based school segregation was acceptable, that books, magazines, and movies focusing on non-political topics were not constitutionally protected speech, and that state governments could openly discriminate against women. Judge Gorsuch has never committed a faux pas of this nature.

To the contrary, a comprehensive review of Gorsuch’s prior opinions indicates that he is truly a consensus individual. Because Gorsuch is a textualist, he believes that criminal laws should be clear and be interpreted in favor of defendants even if it hurts government prosecutions. Once a conviction has been reached in a fair trial, however, he rarely sets criminals free during post-conviction review. Gorsuch is a friend of religious pluralism and supports faith-based exemptions for those objecting to federal laws that hamper their ability to practice their religion. He also believes that the establishment clause does not prevent local municipalities and state governments from erecting innocuous religious displays such as Christmas crèches. Indeed, unlike some more liberal judges, Gorsuch has repeatedly emphasized the need for courts to defer to a party’s articulation of their religious beliefs without examining the belief’s plausibility. Such an opinion naturally benefits certain fringe religious groups such as Native American tribes.

Finally, in what is perhaps the biggest untold irony of this whole situation, Gorsuch is skeptical of executive power. He has repeatedly urged his colleagues to give less discretion to executive agencies that advance questionable interpretations of the federal laws they enforce. This approach could severely limit President Trump’s capacity to unilaterally overturn the milestone’s of President Obama’s legacy. Given President Trump’s low approval ratings, Gorsuch’s willingness to hold the Executive branch accountable is a crucial asset to his potential value on the Supreme Court. In short, Judge Gorsuch has already demonstrated that he is “independent, [non]-ideological, [willing] to protect fundamental rights, and within the legal mainstream.”

With this said, Gorsuch has been nominated by a Republican. He opposes race-based affirmative action programs, and while he has no record on abortion, many suspect that his personal views are pro-life. Indeed, his book on assisted suicide is founded on the premise that “all human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong.” These facts alone, however, are hardly enough to warrant Senate disapproval for three reasons. Firstly, each year, only 5% of the Supreme Court’s docket pertains to constitutional issues. The fact of the matter is that the vast majority of cases that the new Justice will decide will not implicate controversial issues such as abortion or affirmative action. Rather, they will involve more mundane issues such as statutory interpretation, tax law, federal Indian law, and border disputes between states. Second, while Merrick Garland was originally appointed for Scalia’s seat, the constitution vests both the President and Senate with the political discretion not the duty to nominate and confirm candidates respectively. The Garland incident, therefore, has no bearing on whether Gorsuch should receive Senate consideration. In any event, the Republican majority can simply amend the Senate rules to require a simple majority vote for confirmation if the Democrats threaten a filibuster. Third, historically speaking, the Senate’s duty to confirm executive nominees does not allow it to reject a Supreme Court candidate for political reasons alone without other supplementary justifications such as repugnant moral character, academic and professional mediocrity, or (as was the case with Merrick Garland) long standing Senate practice.

If nothing else, it is evident that the Senate must screen Supreme Court candidates for intellectual rigor and inexcusable views such as support for race-based segregation. For instance, when Richard Nixon nominated Harold Carswell to replace Justice Abe Fortas, the legal community experienced an uproar; Carswell’s qualifications and record were unspectacular to say the least. On 58% of all the cases he oversaw, Carswell’s legal errors had to be corrected by a higher court. In contrast, during his ten-year tenure on the Federal Bench, not one of Gorsuch’s decisions has been reversed. Additionally, Carswell was rumored to be a closeted white supremacist. Even his own supporters had to concede that he was not up to the job. Roman Hruska, a Nebraska Republican, could only say the following in support of him:

“Even if [Carswell] were mediocre, there are a lot of mediocre people. They are entitled to a little representation, aren’t they?”

Do mediocre people deserve representation on courts? Of course not. Judges are not politicians nor nitwits. They are not supposed to cave to popular pressure when the law commands an unpopular result. They ought not reflect the desires of the polity or changing social mores. Federal judges do not represent us as elected officials do.

Judges say what the law is. They are granted life tenure precisely so they may maintain a scholarly but cloistered life and protect time tested values right when the majority wants to ignore them. If one accepts the non-controversial facts that first, there is a difference between making laws and interpreting laws and second, that judicial independence requires judges to eschew political considerations in determining legal rights, it makes no sense for the Senate to reject an otherwise qualified nominee because of how they act inside a voting booth.

Mr Gorsuch may be conservative but he is principled, fair-minded, and well-qualified. He is exactly what the doctor ordered for the start of Trump’s first term.