During the 2016 election cycle, Donald Trump spent an inordinate amount of time on the campaign trail promising to fill Justice Scalia’s vacant seat with someone of like judicial philosophy and record. I was highly skeptical. In fact, I declared with misguided confidence that there was “zero shot” that Trump would “appoint a conservative.”
I couldn’t be happier to declare I was dead wrong.
Thank you, President Trump.
President Trump kept his promise to appoint a textualist to fill Scalia’s seat. Judge Neil Gorsuch of the Tenth Circuit Court of Appeals, by all available indicators, follows Justice Scalia’s jurisprudential philosophy – and even goes further than Scalia did in certain directions regarding separation of powers.
Gorsuch’s judicial record isn’t exactly replete with hot button issues, but he’s universally on the right side when faced with those issues. He has ruled that Obamacare could not trump the religious freedoms of the Little Sisters of the Poor. Here’s what he wrote in that case:
All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others. For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability…[this statute] violates their faith, representing a degree of complicity their religion disallows.
He’s ruled that public displays of the Ten Commandments do not in fact represent establishment of religion in violation of the Constitution.
He has stood in favor of the constitutionality of the death penalty and ruled in favor of strengthened Second Amendment rights.
Most importantly, he has an actual judicial philosophy. In 2005, he wrote this at National Review:
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.
In April, Gorsuch stated that Scalia’s career “remind[s] us of the difference between judges and legislators.” Judges, Gorsuch said, should not be looking to “appeal to their own moral convictions,” but rather to “apply the law as it is, focusing backward, not forward, and looking to the 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 – not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.”
While Justice Scalia was weak on the so-called Chevron rule – the notion that courts have to allow executive agencies to interpret ambiguous statutes in any “reasonable” fashion they choose – Gorsuch believes, correctly, that this leads to serious abdication of Congressional responsibility and centralization of executive power. He wrote in 2016 that the Chevron rule “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.” Gorsuch obviously cares deeply about retaining the Constitution’s stark division of powers and forcing Congress to do its part.
We'll find out if there are any red flags when the hearings begin. But from the evidence on the table, Gorsuch is an excellent pick.
So again, thank you, Mr. President. You kept a promise I didn’t think you would. Now let’s hope Senator McConnell does his part.