Conservatives focused on the issues of abortion and gun rights have taken a leap of faith that appeals court Judge Neil Gorsuch will share their points of view if he is confirmed to the Supreme Court.
Gorsuch looks poised to follow in the footsteps of the late Justice Antonin Scalia, a stalwart originalist whose vacant seat Gorsuch is looking to fill. But the potential for the 10th Circuit Court of Appeals judge to differ from Scalia on the Second Amendment and abortion has some conservatives acknowledging they are not sure where the high court nominee stands on those issues.
The Heritage Foundation’s John Malcolm, whose list of potential Supreme Court picks was used by President Trump in making his selection, said Gorsuch has not written enough on the Second Amendment and abortion for him to clearly construe the judge’s opinions. But Malcolm said Gorsuch’s constitutionalist and originalist approach to jurisprudence gives him confidence.
“I look at a bright, honest judge who has in my view a proper understanding of the important but limited role judges play in our system of government and somebody who has an approach to judging constitutional and statutory issues that is one that I agree with and respect,” Malcolm told the Washington Examiner. “I will put my faith in a judge like that to reach the right result whatever that result is.”
Several conservative groups investing large sums of money in the effort to confirm Gorsuch are similarly placing their faith in Gorsuch absent a robust record of opinions and writings on gun rights or abortion.
The Faith and Freedom Coalition is mailing 1.85 million pieces and postcards to about a dozen states featuring Democratic senators who the social conservative group thinks are most likely to support Gorsuch, said Ralph Reed, the coalition’s founder. The large-scale effort comes as Reed acknowledged that the Supreme Court nominee’s view on abortion is difficult to know, saying, “We don’t really have the ability to speculate on [Gorsuch’s view on abortion] based on his body of work as a judge.”
Reed pointed to Gorsuch’s dissent in the 10th Circuit’s decision to deny a full review of the Utah governor’s suspension of state funding for Planned Parenthood. Gorsuch’s dissent argued the federal appeals court had departed from the standard rules of review and did not directly reveal any hints about his thoughts on laws regarding abortion.
“I think based on his jurisprudence and deference to the legislative process and his indicating that the role of a judge is to interpret and see that the law is enforced, not to make law from the bench, I feel as confident as you can be that his philosophical underpinnings should lead him to the conclusion that Roe v. Wade was bad law,” Reed said.
“I don’t think that should he be fortunate enough to be confirmed, and I believe he will be, that he will ever take lightly that he occupies the seat previously held by arguably the most brilliant conservative jurist of our times. And I expect him to act accordingly and that’s all that we really need him to do.”
In addition to the mailers the group is distributing, Reed said the Faith and Freedom Coalition is preparing to contact nearly 2 million people in targeted states to boost support for Gorsuch. Those states include Florida, Indiana, Missouri, Montana, North Dakota, Ohio, Pennsylvania, West Virginia and Wisconsin.
The National Rifle Association is similarly encouraging its grassroots network to urge confirmation of Gorsuch and is using its resources to help make that happen, according to an NRA spokesman. The representative acknowledged that the group does not know exactly how Gorsuch would rule on Second Amendment issues but said Gorsuch’s originalist approach gave the NRA confidence that he would apply the Constitution as written.
The NRA spokesman also said Gorsuch’s decision to cite a Scalia opinion in District of Columbia v. Heller, a Second Amendment case, provided insight into what he thinks about gun rights.
“If you call and ask us to tick off a bunch of different opinions where he says, where he addresses Second Amendment specifically, there’s not many judges you’re going to find that with, anyway,” the NRA spokesman said in responding to a question about Gorsuch’s record and writing on gun rights.
Lawrence Keane, National Shooting Sports Foundation senior vice president, also acknowledged that Gorsuch’s writings on the Second Amendment are “limited” but that Gorsuch’s originalist approach gave his organization confidence enough to support Gorsuch’s confirmation.
Keane said Gorsuch’s firsthand experience with guns helps the National Shooting Sports Foundation’s opinion of the Supreme Court nominee. If the Senate confirms Gorsuch, Keane said he hopes Gorsuch would educate other members of the high court about hunting, firearms and the great outdoors.
“The fact that he’s a hunter and a sportsman, an outdoorsman, is certainly appealing to us because he understands many of the issues that are important to our members,” Keane said. “We’ve seen many judges in both state and federal court who have no background at all or experience with firearms, don’t understand the issues that are important to gun owners, they don’t understand the importance of conservation so that’s important to us.”
One area in which Gorsuch differs from Scalia that has won high praise from the conservative legal community is the Colorado judge’s urging of reconsideration of the Chevron doctrine.
The Supreme Court ruled in Chevron U.S.A. v. Natural Resources Defense Council that courts should defer to executive agencies’ interpretations of certain statutes unless they are deemed unreasonable. Gorsuch’s 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 Consitution of the framers’ design.”
Senate Judiciary Committee Chairman Chuck Grassley welcomed Gorsuch’s opinion of the Chevron doctrine in an interview with the Washington Examiner. Grassley said his private conversation with Gorsuch did not yield any information about where the nominee stands on the Second Amendment or abortion, and Grassley added that Gorsuch should not provide such information.
“I don’t think I would expect an answer from him,” Grassley said of Gorsuch’s opinion on gun rights and abortion. “I don’t think he ought to be answering that specific before my committee. He needs to tell us how he will approach a case.”
