With Supreme Court nominee Neil Gorsuch’s confirmation hearings set to begin in the Senate next month, President Trump’s high court pick is about to be introduced to a large swath of the American people for the first time.
The Heritage Foundation’s John Malcolm studied Gorsuch’s record and developed a short list of potential Supreme Court picks that Trump incorporated into his own list of nominees. Malcolm, director of the think tank’s Edwin Meese III Center for Legal and Judicial Studies, spoke with the Washington Examiner about Gorsuch’s record and how the federal appeals judge could shape the future of the high court. The following is an abridged transcript of the conversation, with questions lightly edited for clarity.]
Washington Examiner: When you were developing the list that Trump incorporated into his own …
John Malcolm: In part.
Washington Examiner: Right, right. When you created that, I noticed that the initial list didn’t have Neil Gorsuch on it, why didn’t he make the cut?
John Malcolm: I had my list by design very, very short. It was under-inclusive rather than over-inclusive. I wanted to get it out fairly quickly, it was a lot of material to review, and so I kept my list very short. I have said now on several occasions that had I had 10 names on my list instead of eight names on my list, the two names I would have added were Neil Gorsuch and Raymond Kethledge of the 6th Circuit. I didn’t really know Thomas Hardiman’s work at the time. I actually read a number of his opinions and got to meet him afterwards. I’m sure he would have also been an outstanding nominee, but I just decided to keep my list short and made it clear that this was the type of person, there were these eight names, but this was the type of person whom I would have wanted on the list. Had I had a little bit more time, I think Neil Gorsuch would have been on my list, probably should have been on my list. I will also note that after my list came out, he wrote one opinion that really came to, was brought to my attention, I thought was a terrific opinion, and that was his opinion in the Gutierrez-Brizuela case, in which he asked or urged the Supreme Court to take another look at the Chevron doctrine. That opinion came out after my list and I thought it was very well done.
Washington Examiner: Do you think that change afterward would have made you bump him up to include past some of the people that were already on your list?
Malcolm: I don’t know that it would have made it past other people on my list. The names of the people on my list were all outstanding people. I stand by them including the two people that never made the Trump list and that was Paul Clement and Brett Kavanaugh of the D.C. Circuit Court of Appeals. But as I say, hindsight being what it is, I probably should have had 10 names on my list, instead of eight names on my list. And if I had had 10 names on my list, Raymond Kethledge and Neil Gorsuch would have been the two names I would have put on. So the fact that he was not included on my list was in no way shape or form meant as a slight on Neil Gorsuch, and in fact I think he’s an outstanding nominee. And the more I learn about him the more I like him.
Washington Examiner: You mentioned the Chevron doctrine — that’s obviously something where it seems like Gorsuch is a little bit different from Justice Antonin Scalia.
Malcolm: It is.
Washington Examiner: So where are the areas where you see differences?
Malcolm: That’s probably the major one. Although, I have to say that even Justice Scalia was starting to express some skepticism toward Chevron himself, towards the end of his judicial career. I know that he wrote, well, it was a case in which the Supreme Court denied certiorari, it was U.S. v. Whitman. And Justice Scalia wrote an opinion concurring in the denial of certiorari, joined by Justice [Clarence] Thomas, but saying although I think it was appropriate to turn this case down, if the court were presented with a case, a proper case, about whether Chevron deference should apply to agencies that are interpreting criminal statutes, I would be inclined to hear that case and I would be inclined to hold that an agency should not get Chevron deference when it comes to criminal statutes. That’s also an opinion that Judge Gorsuch has shared. He’s written that in opinions that he has done.
And I would also note that Chevron comes into play when you have an ambiguous statute. Justice Scalia was less inclined to find ambiguity in a statute than a lot of his colleagues. Nonetheless, that is a difference. Justice Scalia supported the Chevron doctrine. He wrote an opinion extending Chevron to agencies’ interpretations of their own regulations, that’s the Auer case, A-U-E-R. He wrote an opinion involving the city of Arlington [Texas] that said Chevron deference was due to agencies that were determining their jurisdiction to decide issues. And so he was for the most part a supporter of Chevron. And Judge Gorsuch isn’t. And what impresses me about Judge Gorsuch’s opinion is not that he has a distrust somehow of executive branch agencies, there’s nothing in his opinion that indicates distaste for executive branch agencies. His opinion is rooted in the separation of powers and what Article III says about the duties of federal court judges to act like judges. So his criticism is not that the people of executive branch agencies are good people or bad people. He’s saying, look, if Congress passes an ambiguous statute, first of all Congress probably shouldn’t be delegating authority for law-making to agencies. Law-making should be made by legislatures.
But setting that issue aside, if Congress passes an ambiguous statute, judges should act like judges in terms of looking at that statute and coming up with what the best interpretation of that statute is rather than saying, “Well, if it’s ambiguous, we will punt the issue to an executive branch agency so long as their interpretation of that statute is not patently unreasonable.” His view is we have separation of powers and it is the task of judges, the vesting clause of Article III vests the judicial power in judges, not executive branch agencies. He views this as a separation of powers issue. I think that’s a very, very powerful argument and I’m impressed by it.
Washington Examiner: Would you expect him to be perhaps less deferential to a President Trump than say someone such as Merrick Garland would have been in the same position as a justice on the court?
Malcolm: Well let me say this, I think that a Justice Gorsuch would be less-inclined to, well let me step back. A Justice Gorsuch is going to follow the law, so unless and until he can persuade a majority of his colleagues on the Supreme Court to overturn Chevron, he may criticize Chevron but Chevron will be the law of the land. I think that if Justice Gorsuch’s views on Chevron apply, he’s going to be less deferential to executive branch agencies under President Trump and under future presidents, be they Democratic presidents or Republican presidents. He’s not going to apply one test to Trump executive branch agencies but another test to some future Democratic presidents’ executive branch agencies. And I forget, what was the second part of the question that you—
Washington Examiner: That was pretty much the whole question. … In terms of following in the footsteps of Justice Scalia, what makes you confident that [Gorsuch] will be someone who is in the mold of Justice Scalia? Should conservatives out there that are reviewing his record now have any concern that he might end up being a justice more along the lines of Anthony Kennedy, for whom he clerked, than Justice Scalia?
Malcolm: Look it’s always impossible to tell what’s in a man’s heart and soul, and he has not written on a number of issues that are important to me and important to the public at large actually, important to conservatives and also important to liberals. And it is an independent branch of government and I think that judges should be independent and they are life tenured so there’s no such thing as a riskless choice in this regard. I take a great deal of heart in the fact that he appears to have a settled judicial philosophy. He is a constitutionalist judge in the sense that he approaches constitutional issues through the framework of trying to understand, studying the text and structure of the Constitution, and trying to understand that text and structure according to its original public meaning that the general public understood at the time those provisions were ratified. He has applied that approach consistently throughout his judicial career. And he has, to quote Justice Scalia, reached results based on that philosophy and that approach to judging that he probably doesn’t like on a personal level. That to me shows he has a settled view of the proper role of a judge one with which I agree. He applies it consistently and he has the guts to apply it even when he does not like the outcome. Justice Scalia fit in that mold and I think Justice Gorsuch will fit in that mold. Am I going to be able to predict every decision he’s going to make? No. Am I going to like every decision that he reaches. Undoubtedly, the answer to that will be no. But I nonetheless feel that that seat on the Supreme Court will be in sure hands with a Justice Gorsuch.
Washington Examiner: When you look at where he fits into this current court, do you see any new coalitions forming that he might be a part of with other justices that perhaps Justice Scalia wasn’t or do you expect it to create the same 5-4 dynamic in certain instances that was there when Justice Scalia was there?
Malcolm: That’s hard to say. I mean as a general matter, even if you assumed that Justice Gorsuch would vote pretty much the same way in cases as Justice Scalia, that will not for the most part change the overall direction of the court, it will just return to the status quo ante that existed before Justice Scalia died. There are certain issues now, most prominently I would say in the area of religious freedom, so Hobby Lobby that sort of thing, and also in terms of the First Amendment implications of compelled dues by public union employees. That was the Friedrichs case that divided four-to-four after Justice Scalia died. So there are a few cases in which I think a Justice Gorsuch would be a deciding vote. On a number of other issues, you’ll be returning to the status quo ante that existed before Justice Scalia died. But you know they’re different personalities, by all accounts Justice Scalia was a very collegial guy, formed close friendships with Elena Kagan and Ruth Bader Ginsburg. But there’s no question that sometimes his writing had bite. And Justice Gorsuch, one thing the public can now see this, is a very personable guy. He has a close personal relationship with Anthony Kennedy, he clerked for him. Anthony Kennedy flew out to Colorado to swear Judge Gorsuch in. Whether or not because of that personal relationship he might be able to sway Justice Kennedy on the margins, I don’t know. From my perspective, I hope so.
Washington Examiner: Do you think that was part of the reasoning behind his selection — the hope that you could sway Justice Kennedy or even make him feel, I’ve heard some speculation, confident if he were to step down that there would be a justice that Kennedy would be comfortable with coming in to replace him that would be tapped by a President Trump?
Malcolm: I have heard that. I have absolutely no idea whether it is true or not. I would note that if that was one of their goals, I hope it succeeds. But that a Judge Gorsuch is likely to sit on the Supreme Court for a very, very long time, long after Anthony Kennedy has decided to leave the court and so I think that there are far more important considerations to this pick than whether or not it’s going to assuage Justice Kennedy.
Washington Examiner: One of the labels I keep hearing applied to Judge Gorsuch is that he’s going to be a mainstream justice. Obviously that’s pushing back on some things [Senate Minority Leader] Chuck Schumer had said and things like that, but in describing him as mainstream, do you see him that way? Do you see his judicial philosophy, originalism, as a mainstream judicial philosophy?
Malcolm: I hate that term. If mainstream is meant to mean wishy-washy or a compromiser, then that’s a horrible term to use. The only credence that I will give to that term, which is not to say that he’s outside the mainstream or inside the mainstream, I just think it’s a terrible label, it’s a meaningless label. The only credence I will give to that term is to say this: The few cases that Judge Gorsuch has ruled on that have been reviewed by the Supreme Court have almost unanimously been, in almost all instances if not in all instances, affirmed by the Supreme Court. He has dissented in a small percentage of the cases in which he has participated and has written dozens, if not hundreds, of opinions that have been joined by Democratically appointed judges. His originalist, constitutionalist approach to constitutional issues is certainly one now that is followed by other justices on the Supreme Court and is cited by in academic literature and taught by highly respected academics in law school. There aren’t that many conservative faculty members in law schools, but a number of them who are there teach an originalist, constitutionalist approach to deciding constitutional issues. So I don’t think that there is anything radical about any opinion that Judge Gorsuch has written or about his approach to judging. Now, if not being radical means he’s part of the mainstream, so be it. But that’s not a phrase I like particularly.
Washington Examiner: In terms of applying this Scalia litmus test, the Scalia-ness test, that President Trump has applied, that people who voted for Trump were interested in having be applied to whoever would become the pick to be the next Supreme Court justice, does that [test] survive this nomination to whichever person may come next regardless of whether it’s a Justice Ginsburg or a Justice Thomas?
Malcolm: I don’t know what a Scalia-ness test means. I would say this, I think that every nominee from President Trump for the Supreme Court or for any federal judgeship should be a constitutionalist judge. It should be somebody who approaches constitutional issues by studying its text and structure and tries to discern the meaning of that text and structure according to its original public meaning. I also believe that any judge whom President Trump nominates ought to be a textualist in the sense that they ought to study the text of laws and not under the guise of interpretation try to rewrite that law to suit their personal or political preferences. I believe that by those definitions, Judge Gorsuch is both a constitutionalist and a textualist, I think that that test should be applied for the Scalia seat, for the Kennedy seat, for the Ginsburg seat, for the fill-in-the-blank seat, for any vacancy on the federal judiciary.
