He appears to be supremely qualified—and may be in for the fight of his lifeby James D Zirin / February 2, 2017 / Leave a comment
Donald Trump’s Supreme Court nomination of Neil Gorsuch had all the earmarks of reality television or perhaps, more aptly, the crowning of Miss Universe.
The Trump presidency had stumbled at the gate over the travel ban on immigrants from seven majority Muslim countries. Protesters filled the streets. At least 13 lawsuits had been filed from coast to coast. Five federal judges had temporarily enjoined Trump’s executive order finding that there were significant constitutional questions of due process and equal protection. Trump had to fire the courageous acting Attorney General, Sally Yates, who refused to carry out his executive order, recalling the 1973 “Saturday Night Massacre” when Nixon fired the two senior officials of the Justice Department for refusing to fire Special Prosecutor Archibald Cox.
Trump needed a respite from his troubles, a media event. So he moved the announcement up two days, and scheduled the event in prime time so he could make public the decision that was at the core of his election campaign—the nomination of a Justice who would “automatically” overrule the abortion decision Roe v. Wade. Currently, there are four conservative and four liberal Justices. Given that Supreme Court Justices sit for life, and there are two elderly Justices right now, Trump may have the opportunity to swing the balance of the Court for a generation. This nomination may be just the first step.
As though this would not have been drama enough, Trump invited to Washington the runner-up, Thomas Hardiman, like Gorsuch, a federal court of appeals judge. Hardiman was not at the White House for the Gorsuch announcement, but he was in the neighborhood, having driven from Pittsburgh, waiting in the wings, much as a Miss Universe finalist waits with baited breath for the envelope to be opened, only to dissolve in tearful disappointment.
Gorsuch’s résumé made him a “natural fit” for an appointment by a conservative Republican president. Educated at Columbia and Harvard Law School (he was a classmate of Barrack Obama), a Marshall Scholar at Oxford where he read constitutional law under John Finnis, a Catholic professor who elaborated a theory of natural law similar to that espoused by Clarence Thomas. He wrote his Oxford thesis, arguing against assisted suicide, a subject with which he has been preocciupied. His blue ribbon Ivy League credentials are similar to those of the other sitting Justices.
Likewise, his status as a sitting federal appellate judge indicates that the US has moved in the direction of the British system in which appellate judges are promoted from the lower courts. On the full bench, only Justice Elena Kagan, former Harvard Law School Dean and Solicitor General, does not have prior judicial experience in the federal courts of appeal.
The days are numbered when some of the most iconic Justices were appointed directly from the Bar (John Marshall, Louis Brandeis, Felix Frankfurter) or from the political branches of government (Robert H Jackson, Hugo Black, William O Douglas) or from the state appellate courts (Oliver Wendell Holmes, Benjamin N Cardozo, William J Brennan).
Gorsuch, 49 years of age, appears to be supremely qualified, and may be in for the fight of his life. Senate Democrats are still smarting from the cold shower rejection of Obama’s appointee, Merrick Garland, and they may well view the rejection of Gorsuch as “pay-back” time for the “stolen seat.”
The Republican majority in the Senate is 52-48, and Gorsuch should be confirmed if the senators vote along party lines. There may be, however, some procedural maneuvering. If the Democrats “filibuster,” Gorsuch will need 60 votes for confirmation. If Gorsuch fails to win 60, the Republicans could change the rules by invoking the “nuclear option,” as Trump has urged them to do, by doing away with the filibuster and approving the nominee by a simple majority. But Republicans themselves may institutionally need the filibuster later on, and Majority leader Mitch McConnell has said he is reluctant to abolish the filibuster.
It is clear from Gorsuch’s opinions as a circuit judge that he is, like Scalia, an originalist and a textualist. It is unlikely that he would ascribe to a “living Constitution,” a document whose values are, as former Chief Justice Earl Warren put it, “drawn from the evolving standards of decency that mark the progress of a maturing society.” Instead, he is likely to view the Constitution, as Scalia did, as “dead,” to be interpreted in accordance with its text and its original understanding in the eighteenth century when the charter was ratified.
Originalism inevitably drives the Justice to outcomes favored by conservatives: gun rights, restrictions on gay marriage, regulation of women’s reproductive rights, support for religious freedom at the expense of other constitutional rights, a relaxed separation between church and state, and invalidating legislative restrictions on campaign finance. In these areas, Gorsuch will likely vote much the way Scalia would have done.
There is one area, the discretion the courts will allow to the executive branch, where Gorsuch may depart from Scalia. This implicates the separation of powers that Alexander Hamilton and James Madison sewed into the Constitution to prevent a tyrannical president from seizing unchecked power. Scalia believed that where a statute of Congress was ambiguous, the courts should defer to the interpretation given to the statute by the agency charged with carrying out the legislation. Gorsuch appears to differ with Scalia on the point, and believes it is for the courts, not the executive, to interpret the statute.
In the Trumpian world of excessive executive orders, particularly where immigration, civil rights, women’s rights, privacy, religion, are implicated we will have to see whether Gorsuch adheres to these views or will defer to the discretion of the executive branch because the executive is now a Republican, not a Democrat.
All in all, it was a good day for Trump amid a storm of controversy. He had done just what he had promised to do, find a Scalia clone for the empty seat on the United States Supreme Court. But it was all high political theatre.