President Trump nominated federal appeals court Judge Neil Gorsuch to fill the Supreme Court vacancy during a prime-time announcement Tuesday.
“I have selected an individual whose qualities define, really and I mean closely define, what we’re looking for. Judge Gorsuch has outstanding legal skills, a brilliant mind, tremendous discipline, and has earned bipartisan support,” Trump said Tuesday night as he announced his pick in the White House’s East Room.
Gorsuch, a 10th Circuit Court of Appeals judge, emerged as a top contender from Trump’s short lists in the final weeks before Trump made his pick public.
“I pledge that if I am confirmed, I will do all my powers permit to be a faithful servant of the Constitution and laws of this great country,” Gorsuch said.
An appointee of President George W. Bush, Gorsuch is a 49-year-old Harvard Law graduate who has developed a reputation as an “incisive legal writer” with a “flair” reminiscent of the late Justice Antonin Scalia, whose seat he will look to fill. Scalia’s widow, Maureen, and son Paul were in the East Room for the announcement.
“With us tonight is Maureen Scalia, a woman loved by her husband and deeply respected by all,” Trump said. “I’m so happy she is with us. Thank you, Maureen. She’s really the ultimate representative of the late great Justice Antonin Scalia whose image and genius was in my mind throughout the decision-making process.”
Gorsuch, who would be the youngest member of the high court, said he thought a crucial component of Scalia’s legacy was to call attention to the differences between legislators and judges, in a lecture on Scalia’s legacy at Case Western University last year.
“Perhaps the great project of Justice Scalia’s career was to remind us of the differences between judges and legislators; to remind us that legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future, but that judges should do none of these things in a democratic society,” Gorsuch said. “That judges should instead strive, if humanly and so imperfectly, to apply the law as it is, focusing backward, not forward, and looking to text, structure and history to decide what a reasonable reader at the time of the events in question would have understood the law to be— not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.
“It seems to me there can be little doubt about the success of this great project. We live in an age when the job of the federal judge is not so much to expound upon the common law as it is to interpret texts — whether constitutional, statutory, regulatory or contractual.”
Gorsuch’s opinion urging reconsideration of the Chevron doctrine likely will attract attention as the president’s interaction with Gorsuch is set to take center stage.
In Chevron U.S.A. v. Natural Resources Defense Council, the Supreme Court decided that courts should defer to executive agency interpretations of certain statutes unless they are deemed unreasonable. Gorsuch’s concurring opinion in Gutierrez-Brizuela v. Lynch noted that the ruling permitted “executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”
Time will tell if the high court heeds Gorsuch’s plea and tackles Chevron head on.
In cases lauded by abortion foes and religous freedom advocates, Gorsuch sided with Hobby Lobby and Little Sisters of the Poor in their challenges to a requirement from the Obama administration to provide birth control in employee health plans. The Hobby Lobby case eventually landed at the Supreme Court, which said the administration must better exempt it from covering contraception.
His writings as a judge on the 10th Circuit also show him serving as a staunch defender of Fourth Amendment rights.
Gorsuch dissented in U.S. v. Carloss, in which the court ruled against Ralph Carloss, who argued that two police officers violated the Fourth Amendment in bypassing his “No Trespassing” signs and knocking on his front door and asking to speak with him. Gorsuch disagreed and argued that the sign was sufficient to cancel the police’s license to enter Carloss’ residence.
In U.S. v. Krueger, Gorsuch concurred in a judgment that suppressed child pornography seized after a Kansas magistrate judge supplied a warrant to search an Oklahoma residence. Gorsuch concluded that the Fourth Amendment and language of a state statute require warrants to be executed where the judge issuing the warrant lives.
In another child pornography case, U.S. v. Ackerman, Gorsuch wrote the court’s opinion arguing that a government entity’s opening of an email containing child pornography intercepted by AOL, an Internet service provider, amounted to a Fourth Amendment violation. AOL forwarded an email containing child pornography to the National Center for Missing and Exploited Children, which opened the email, confirmed that the contents appeared to be child pornography, and alerted law enforcement. In doing so, Gorsuch decided that the center committed a trespass.
Democrats seeking to block Gorsuch’s nomination will likely question his ability to remain independent from the president. Lena Zwarensteyn, strategic engagement director of the left-leaning American Constitution Society, said she thought all of the individuals on Trump’s short lists posed concerns for maintaining the judiciary’s impartiality.
“I think there are some real concerns about the independence of these nominees,” Zwarensteyn said last week. “It looks like Trump has some sort of promise from these nominees.”
Zwarensteyn pointed generally to Trump’s public statements as suggesting that any nominee he would select would “do right by him,” which she said would mean that their integrity has been compromised.
Gorsuch’s smooth sailing through his circuit court confirmation process — his nomination passed via voice vote because it wasn’t deemed controversial at the time — may make him an attractive pick for Trump. But his easy confirmation more than a decade ago may not prove beneficial as he squares off against Senate Democrats looking to stop Trump’s nominee.
Trump adviser Leonard Leo said in a statement on Tuesday night that Gorsuch’s selection ably fulfilled the president’s campaign promise to the American people.
“Tonight President Trump did exactly what he told the American people he would do — nominate a distinguished, exceptionally qualified, and widely respected jurist to fill Justice’s Scalia’s seat on the Supreme Court,” Leo said. “Judge Gorsuch possesses keen intellect, independence of judgment, integrity, courage, and a sense of fairness that is grounded in the Constitution and laws as they are written. This is what the president very much wanted in a nominee.”
