FBB Special Report: Trump’s Supreme Court Pick

“Peyton Cabot Harrison Ill. You know what we’ll have?” “A waspy old man on the Supreme Court?”

The West Wing, S1E9 “The Short List”

Winston Smith

Yesterday, Donald Trump announced his new Supreme Court pick to replace Justice Antonin Scalia. In an event that has been characterized as reality-tv-esque, Donald Trump announced that the next Supreme Court Justice would be Neil Gorsuch.

One of the most striking implications of this pick is Gorsuch’s age. Gorsuch is only 49 years old, meaning that he is young, real young, for a Supreme Court Justice. In fact, Gorsuch is the youngest Justice to be nominated in 25 years. This means that, if confirmed, Gorsuch would have a strong likelihood of being on the Court for over 30 years. This means that this seat will be filled for a very long time, making a strong legacy pick even while Trump will be long out of office.

Unlike many of Trump’s picks, Gorsuch is actually a highly qualified candidate for his position. Gorsuch earned his B.A at Columbia University in 1988 then his J.D. from Harvard Law School in 1991 and finally his D. Phil. in Jurisprudence from Oxford University in 2004. Following his graduation from Harvard Law School, Gorsuch clerked for David B. Sentelle on the United States Court of Appeals for the D.C. Circuit from 1991 to 1992 (the D.C. Circuit court being widely considered a “farm system” for the Supreme Court). Gorsuch then graduated to the United States Supreme Court, clerking for Justices Byron White and Anthony Kennedy from 1993 to 1994. After the Supreme Court, Gorsuch joined the law firm Kellogg, Huber, Hansen, Todd, Evans & Figel as an associate in 1995, moving to a partner from 1998 to 2005.

Gorsuch began his career in the federal government as Principal Deputy to the Associate Attorney General at the Department of Justice from 2005 to 2006. On May 10, 2006, Gorsuch was nominated to the United States Court of Appeals for the Tenth Circuit by George W. Bush.

There is no question that Gorsuch is qualified, but the question many are asking is how Gorsuch would rule on cases, what is his judicial temperament. Gorsuch has been an originalist and textualist, or a believer in a strict interpretation of the Constitution, mirroring the principles of the late Justice Scalia, making Gorsuch a proper ideological replacement. What we do not have is a particularly long history of opinions from Gorsuch, but what we do have indicates that Gorsuch will tend to rule on the side of the conservative side of the legal spectrum.

In Hobby Lobby Stores, Inc. v. Sebelius, Gorsuch showed that he was a strong proponent of religious freedom as he concurred with the majority finding that the Affordable Care Act violated Hobby Lobby’s religious freedom in requiring the business to provide contraception. Specifically, he wrote;

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.

As the Greens explain their complaint, the ACA’s mandate requires them to violate their religious faith by forcing them to lend an impermissible degree of assistance to conduct their religion teaches to be gravely wrong.

In his 2006 book “The Future of Assisted Suicide and Euthanasia”, Gorsuch railed against euthanasia writing; “All human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong.” Drawing from this statement, it only takes a small logical leap to assume his position on abortion will be strongly pro-life, much to the chagrin of many liberals.

Gorsuch has also spoken out against liberals who have taken to the courts to achieve their goals. In 2005 Gorsuch wrote an essay entitled “Liberals’N”Lawsuits” where he claimed that;

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.

Now while there may be something to be said against abuse of the legal system to subvert the legislature, it does not bode well for many if Gorsuch will walk into the chamber with a predisposition for any liberal before him. Then again, unfortunately for all of us, I do not believe that any of us would expect him to not be biased in some way.

In addition, Gorsuch opposes giving federal agencies broad authority to interpret law (bad news for President Obama’s environmental legacy) and takes a broad view of the Fourth Amendment.

Now it is not all bad news, Gorsuch has supported term limits which some believe would help protect our democracy by preventing life-long politicians from choking out new blood in the legislature.

In reviewing this pick we all should remember that this is by far not the worst pick that Trump could have made for an appointment to the Supreme Court. I’m sure we are all glad that we aren’t looking at Rudy Giuliani as a candidate for the highest court in the land. The worst thing this pick does is continue to entrench the ideological split in the court. With Gorsuch we stick with the devil we know rather than an unknown. While I do not believe that Trump is particularly knowledgeable in politics or law, this pick makes it hard for Democrats to look reasonable in opposition. Gorsuch is highly qualified, seemingly kind, and not Alt-Rightesque. As a result, this sets up Democrats to either set up a fierce opposition to a relatively mild-mannered, reasonable selection (after they spent 6 months saying it was the Senate’s role to advise and consent) or to suck it up and accept that the court’s composition will remain the same. The choice is obvious. Confirm Gorsuch.
While Gorsuch is not my top pick, he is also not the worst imaginable pick which, weirdly enough, makes him the perfect candidate.


Update 7 April 2017, Noon ET: In a 55-45 vote, Neil Gorsuch was confirmed as the next Associate Justice of the United States Supreme Court today. Three Democrats and all Senate Republicans voted to confirm Justice Gorsuch. Justice Gorsuch’s confirmation took 66 days, the exact same amount of time as Justice Sotomayor, and three weeks faster than Justice Elena Kagan. The length of this process is on par with the length of Supreme Court confirmations going back to the start of President Reagan’s term (66.3 days).

Photo Credit: David Zalubowski / AP

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