Seconds after announcing that he was nominating Judge Neil Gorsuch to the United States Supreme Court, President Trump turned to the crowd gathered in the East Wing of the White House and asked a question.
“Was that a surprise?” he asked. “Was it?”
For many observers of the high court, it wasn’t, and it represents a notably play-it-safe approach from the Trump administration amid partisan animosity that has been building in Congress for almost a year over the court vacancy.
To be sure, Judge Gorsuch will face opposition. One abortion-rights group has already said he “represents an existential threat to legal abortion in the United States and must never wear the robes of a Supreme Court justice.” And Democrats are bitter that Republicans blocked President Obama's pick to fill this vacancy, which opened when Justice Antonin Scalia died last February.
But of the three names reportedly on Trump’s shortlist for the nomination, Gorsuch is “the smallest target” for Democrats, according to Michael Gerhart, scholar-in-residence at the National Constitution Center.
Indeed, an unusually dramatic and hype-filled nomination process has ended with a fairly conventional conservative nominee who is well calibrated to weather the scrutiny that will come from filling the longest US Supreme Court vacancy in history.
“There’s really not that much [for Democrats] to grab onto,” says Ilya Shapiro, a senior fellow at the libertarian Cato Institute.
An admirer of Scalia
If Gorsuch is confirmed, his judicial philosophy suggests he could be the ideal candidate not only to emulate Justice Scalia’s brand of conservative ideology, but also his talent for incisive, entertaining writing.
Gorsuch is a known admirer of the late justice. In a speech last April, he recalled how he was “taking a breather” in the middle of a ski run when he learned of the justice’s death. He cried his way down the rest of the mountain, he admitted.
Like Scalia, he is also a staunch proponent of “originalism,” the philosophy that the Constitution should be interpreted as the Framers intended it to be in the late 18th century, and “textualism,” the philosophy that laws should be interpreted literally, without considering any unwritten context, history, or underlying purpose of the statute.
In the White House Tuesday, Gorsuch echoed Scalia in saying that “a judge who likes every outcome he reaches is very likely a bad judge, stretching for judgments he prefers rather than ones the law demands.”
A Harvard Law and Oxford University graduate, Gorsuch clerked for Supreme Court Justices Byron White and Anthony Kennedy, later serving as principal deputy associate attorney general in the US Department of Justice before being confirmed to the US Court of Appeals for the Tenth Circuit, where he currently serves.
He is the second-youngest Supreme Court nominee in history, and if he is confirmed, it would be the first time a former clerk would serve with a justice he clerked for (Justice Kennedy).
How Democrats might react
For their part, Democrats are still angry that the Republican gambit to stop Mr. Obama's nominee paid off, and that Republicans now have been rewarded with perhaps their ideal Scalia replacement. Obama nominated Merrick Garland, chief judge of the United States Court of Appeals for the District of Columbia Circuit, to fill the vacancy last March. Republicans in the Senate refused to hold a confirmation hearing, leading to a 293-day vacancy – the longest in American history by 185 days.
But Gorsuch’s record on and off the bench make him a more acceptable option for Democrats than the other two judges reportedly on Trump’s short list. In particular, Judge William Pryor of the US Court of Appeals for the Eleventh Circuit said the Supreme Court's landmark Roe v. Wade decision upholding abortion rights was “the worst abomination of constitutional law in our history.”
“Gorsuch is the more traditional pick to satisfy conservative legal elites,” says Mr. Shapiro. “In jurisprudence [he] would be more like Scalia.”
Gorsuch hasn’t made many waves in his decade on the Tenth Circuit, though he has carved out a strong conservative record.
In Burwell v. Hobby Lobby, he sided with a company seeking a religious exemption from a requirement to provide contraception to their employees. The Supreme Court later largely vindicated the ruling. He later dissented in a similar case, denying a rehearing for an order of Catholic nuns seeking a similar exemption.
One area where Gorsuch departs from Scalia is in his interpretation of how much power should be given to federal agencies. His views comport with the conservative ideals of limited executive authority, but presidents have been trying to expand the agencies' powers for decades, and Trump appears to be trying to expand them further.
“The court in general has been moving [toward] questioning how broad a deference should be given to an agency,” says Shapiro. “Gorsuch has been outspoken about that.”
“I think the court will be revisiting those doctrines in the coming years.”
Gorsuch’s confirmation hearings will likely be tough, but while some Senate Democrats have pledged to block any Supreme Court nominee who isn’t Judge Garland, they cannot prevent the Republican majority from holding confirmation hearings. And once those hearings take place, Gorsuch’s personal and judicial history are expected to give them little to attack.
Shapiro adds: “I wonder if [they] will keep their powder dry a little bit, because after all, this appointment, unlike the next one, doesn’t really change anything.”