January 31, 2017

Neil Gorsuch Is a Supreme Court Pick

No one can replace Antonin Scalia on the Supreme Court, but President Trump has made an excellent attempt by nominating appellate Judge Neil Gorsuch as the ninth Justice. The polarized politics of the Court guarantees a confirmation fight, but based on his record the 49-year-old judge is a distinguished choice who will adhere to the original meaning of the Constitution.

Judge Gorsuch is a leading light on the Tenth Circuit Court of Appeals, where he was appointed in 2006 by George W. Bush. He is well known in legal circles for his sharp prose, as well as for his arguments for religious liberty and his skepticism toward judicial doctrines that give too much power to the administrative state. He is also noted for a Scalia-like approach to criminal law that takes a dim view of vague statutes that can entrap the innocent.

This paper trail is important, especially given Mr. Trump’s relatively recent embrace of conservative judicial principles. Every recent Republican President has disappointed supporters with at least one of his Supreme Court picks. Sandra Day O’Connor and Anthony Kennedy drifted left over the years as they were feted by Washington elites, while David Souter was a disaster from the start.

Judge Gorsuch’s judicial record makes such a transformation on the High Court unlikely. When the Tenth Circuit heard Hobby Lobby v. Sebelius, a case that eventually went to the Supreme Court, Judge Gorsuch wrote a powerful concurrence supporting religious freedom and the right of a company to opt out of ObamaCare’s contraception mandate based on conscience. While the religious convictions at issue may be contestable or unpopular, Judge Gorsuch wrote, “no one disputes that they are sincerely held religious beliefs.”

Once such sincere beliefs are demonstrated, he added, we know the Religious Freedom Restoration Act applies. “The Act doesn’t just apply to protect popular religious beliefs: it does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve as a refuge of religious tolerance.”

This defense of a core First Amendment right is especially important today when so many progressives want to subjugate religious practice to the will of the state.

Judge Gorsuch has also shown skepticism toward the judicial doctrine known as “Chevron deference” that encourages the courts to defer to an administrative agency’s rule-making. In Gutierrez-Brizuela v. Lynch in 2016, he wrote in a concurrence that requiring courts to defer to executive agencies “seems no less than a judge-made doctrine for the abdication of the judicial duty.”

He added that “Chevron invests the power to decide the meaning of the law, and to do so with legislative policy goals in mind, in the very entity charged with enforcing the law.” This judicial logic also has current relevance because the Obama Administration routinely invoked the Chevron doctrine to defend any regulation, no matter how distant from the text of the statute being interpreted.

Judge Gorsuch has also displayed a crisp approach to cases attempting to discover ill-defined constitutional rights. In a concurrence in 2016’s Cordova v. City of Albuquerque, he took issue with a plaintiff’s vague argument that he was the subject of a malicious prosecution. “Ours is the job of interpreting the Constitution,” he wrote. “And that document isn’t some inkblot on which litigants may project their hopes and dreams for a new and perfected tort law, but a carefully drafted text judges are charged with applying according to its original public meaning.”

At a 2016 speech to honor Justice Scalia’s legacy at Case Western Reserve Law School, Judge Gorsuch noted that “an assiduous focus on text, structure, and history is essential to the proper exercise of the judicial function.” While the Founders debated a role for the judiciary that would have given them some quasi-legislative powers, he said, they instead “quite deliberately chose one that carefully separated them.”

Mr. Trump nominated Judge Gorsuch from the list of 21 potential nominees he released during the campaign, and his choice will be popular among GOP voters of all stripes. The nomination is also a chance for the White House to rebound from some of its early blunders. But it will also be an acute and painful reminder for Democrats of the price of Hillary Clinton’s defeat.

As qualified as he is, Judge Gorsuch ought to be confirmed at least as easily as President Obama’s appointees Elena Kagan and Sonia Sotomayor. But Democrats won’t forgive Republicans for declining to vote on Mr. Obama’s nomination of Merrick Garland last year, though Democrats would have done the same to a GOP nominee in the last year of a presidential term.

Republicans have a 52-seat Senate majority, and without some revelation the presumption will be to confirm Judge Gorsuch. Democrats could attempt a filibuster, but then the GOP will have to be prepared to break it. Mr. Trump won in major part because he promised to appoint judges in Justice Scalia’s mold, and in Neil Gorsuch it appears he has.

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