Now that President Trump has nominated Judge Neil Gorsuch to fill the Supreme Court vacancy, it’s worth questioning whether he has made good on his word to appoint conservative justices.
A 2016 CNN exit poll revealed that Trump received 56 percent of the vote from people who saw the Supreme Court appointment as the most important factor in the election. Trump’s voters expected him to fill Justice Antonin Scalia’s seat with a conservative, one who can pull the court back to the Right. Like rain after a drought, Gorsuch’s nomination responds to their concerns.
Gorsuch is conservative on many of the issues that matter to conservatives and Republicans. According to two ideological rating methods used by political scientists, he is more conservative than both Judges Thomas Hardiman and William Pryor, the two other candidates Trump seriously considered for the vacancy. His votes cast as a judge reveal him to be a consistent conservative.
On religious liberty issues, Gorsuch has rendered several conservative opinions. Before it went to the Supreme Court, his circuit heard the Hobby Lobby case, which determined whether family-owned businesses should be required to pay for insurance coverage of contraception under the Affordable Care Act. Gorsuch wrote a concurring opinion outlining his views that the ACA wrongly forced individuals to violate their sincerely-held religious beliefs. The Supreme Court adopted the general thrust of his opinion.
When, in another ACA case, his circuit ruled against the Little Sisters of the Poor, Gorsuch dissented and made clear his displeasure with that ruling. Once again, he argued that the ACA unlawfully forced individuals to choose between complying with the law or with their religion. And once again, the Supreme Court sided with Gorsuch’s line of reasoning. His voting record is conservative in other types of cases as well.
Another area where Gorsuch can effectuate change may be in the area of administrative law. Over the last eight years, conservatives have recoiled at the abuse of the administrative state. Frustrated that Congress would not accede to his legislative demands, former President Barack Obama relied extensively on the executive branch to make law. In fairness, other recent presidents also were guilty of stretching executive powers, though to a lesser degree. Gorsuch opposes administrative aggrandizement and believes courts should limit how frequently they defer to agency interpretations of law. He believes judges should have greater power to say what regulatory laws mean.
To be sure, Gorsuch will have to explain where he believes this judicial power ends and administrative policymaking begins — after all, no one wants a return to a time when federal judges did things like set fair rates of return or act as expert regulators — but his approach at least pushes back against executive growth.
Gorsuch is an ardent textualist, which should please conservatives. He believes judges should interpret the constitution and statutes based on the text of those laws. Unlike other judges who tend to look at “evolving standards” or treat the constitution as a “living document,” Gorsuch believes judges should interpret ambiguous language by looking to the meaning of the words when they were passed. According to textualists, that is the only principled, constitutional approach to interpreting law.
Gorsuch also has the characteristics and temperament needed for success on the Court. He has a strong legal education as well as a Ph.D. from Oxford, and has written extensively. He has been described as affable, collegial and down-to-earth. These characteristics surely will become important as he seeks to establish rapport on the court.
Finally, if he wants to build winning coalitions, Gorsuch will need to work with Justice Anthony Kennedy, the court’s swing justice, who has drifted left over the last few terms. As I have pointed out elsewhere, Kennedy has moved left every year since Justice Elena Kagan joined the court. One of Gorsuch’s primary goals will be to pull Kennedy back to the right.
In this endeavor, he has two advantages. First, he once clerked for Kennedy, so he knows his preferences and pet peeves. Second, the two have remained close. Kennedy even administered the judicial oath to Gorsuch when he took his seat on the 10th Circuit.
Trump has made a strong and positive statement with his nomination of Gorsuch. The Senate should move quickly to confirm him. He is a qualified, collegial conservative who promises to be effective on the court.
Ryan Owens is a political science professor at the University of Wisconsin-Madison.
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