The Trump administration has undoubtedly faced setbacks during its first 100 days. These challenges include disagreement among Trump’s fellow Republicans regarding the repeal of Obamacare and his initial national security adviser resigning amid reports of his communications with the Russian ambassador during the presidential race.
However, one campaign promise of Trump’s was that his nominees to the Supreme Court would be firmly in the mainstream of legal conservatism. His nomination of Neil Gorsuch to the Supreme Court and the subsequent Senate confirmation was a tremendous success for the Trump administration. Justice Gorsuch’s experience as an appellate court judge on the United States Court of Appeals 10th Circuit and as a law clerk to two Supreme Court Justices, Byron White and Anthony Kennedy, rendered him remarkably qualified for a seat on the Supreme Court.
Gorsuch has expressed great skepticism regarding the powers of the administrative state. For example, Gorsuch has been assertive about revisiting and possibly revoking affording deference to executive agency interpretation of its own statutes and regulations, known as “Chevron deference” after the 1984 case Chevron v. Natural Resources Defense Council. In fact, he believes “Chevron (deference) permit(s) 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.”
Gorsuch’s concern about the far-reaching power of the administrative state is not limited to the Chevron decision. In fact, in a 2013 speech at the Federalist Society’s National Lawyers Convention, Gorsuch expressed pointed unease about overcriminalization. Specifically, he spoke of the astronomical growth of the number of federal criminal statutes and regulatory crimes. “(W)e have about 5,000 criminal statutes … (and) thousands of additional regulatory crimes … that scholars have given up on counting and are now debating their number, ” he said. The American Legislative Exchange Council (ALEC) estimates that there are 300,000 or more regulatory crimes.
The nomination of Gorsuch suggests that Trump—who campaigned to remove onerous and burdensome government regulations—saw in Gorsuch a strong textualist and originalist. Gorsuch’s legal philosophy would lead him to reach decisions that would restore the balance of power between the executive branch and its agencies, the legislative branch and the judicial branch, particularly in the field of administrative law and criminal law.
Interestingly, the Senate considered Gorsuch when President George W. Bush nominated him in 2006 to the 10th Circuit. He unanimously passed the Senate via voice vote, with votes to confirm from former Senators John Kerry, Joe Biden, Hillary Clinton and Barack Obama. In addition, current Senate Minority Leader Chuck Schumer also voted to confirm Gorsuch. His confirmation was appropriately noncontroversial.
Despite having a propensity for deal-making during his time as a U.S. Senator, Schumer expressed “serious doubts” about whether Gorsuch should be confirmed to the Supreme Court and attempted to filibuster him, which is perplexing.
Perhaps Schumer is feeling pressure from the protests outside of his Brooklyn apartment that have called on him to resist all of President Trump’s efforts. Or possibly he was playing politics with Gorsuch’s nomination because Judge Merrick Garland never received consideration from the Senate. Either way, the fact that Garland did not receive a hearing does not mean that Gorsuch was not remarkably qualified to be a Supreme Court Justice. Schumer believes judges must be willing to defend the Constitution from “abuses of the executive branch.” Schumer should have been elated that Gorsuch has profound concerns about the power of the executive branch via the administrative state, particularly in administrative law and criminal law, both fields which have tremendous potential to harm individuals—sometimes irreparably.
Despite Senate Democrats’ best efforts—including attempting to deploy a partisan filibuster over a Supreme Court nominee for the first time in the country’s history—Gorsuch was confirmed via a simple majority after Republicans deployed the “nuclear” option. This option was deployed in 2013 by Senator Harry Reid for all judicial and cabinet-level nominations when the Democrats controlled the Senate. This began the precedent for allowing these nominees to be confirmed by a simple majority in the Senate.
Ultimately, Justice Gorsuch is highly qualified to be a member of the United States Supreme Court. Gorsuch is an individual both sides of the political aisle should have agreed to confirm, just as they did in 2006. Despite this opposition, the Trump Administration’s nominee to the Supreme Court was ultimately confirmed. Given the contentious nomination process, this is one area where the administration stood firm and experienced perhaps its greatest success during the first 100 days.
Ronald J. Lampard is the Director of the Criminal Justice Reform Task Force at the American Legislative Exchange Council (ALEC).
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