The stock of appeals court Judge Neil Gorsuch of Colorado appears to be rising in the final days of President Trump’s search to fill the Supreme Court’s vacant seat.
Pundits are increasingly suggesting the 10th Circuit Court of Appeals judge as a leading contender to fill the void created by Justice Antonin Scalia’s death almost a year ago, but Trump’s team has been mum. People soon may become familiar with Gorsuch, a conservative follower of Scalia’s brand of jurisprudence. Here’s a primer on him:
Following Scalia
Gorsuch, an appointee of President George W. Bush, is a Harvard Law graduate who has developed a reputation as an “incisive legal writer” with a “flair” reminiscent of the justice whose seat he would fill.
Gorsuch 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 record
Gorsuch’s writings as a judge on the 10th Circuit 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.
Gorsuch also has gained attention for an opinion he wrote urging the reconsideration of the Chevron doctrine. In Chevron U.S.A. v. Natural Resources Defense Council, the Supreme Court ruled 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 Chevron allowed “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.”
The Northwestern University Law Review has published a lengthy dossier of Gorsuch’s opinions, as well as other potential nominees on Trump’s short list, which is available here.
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 would square off against Senate Democrats looking to stop whoever Trump nominates dead in their tracks.
