In nominating federal appeals court judge Neil Gorsuch to the Supreme Court, President Trump has made an excellent choice. Assuming there is nothing in Gorsuch’s record that is disqualifying, the Senate should confirm him posthaste.
The path to the Gorsuch nomination began almost a year ago when a seat opened on the Court as a result of Justice Antonin Scalia’s death. The conventional wisdom at the time was that President Obama would nominate a jurist whom the Senate then would confirm. But Majority Leader Mitch McConnell saw the matter differently. Yes, under the Constitution the president has the exclusive power to nominate justices. But the Senate also has a power that it alone may exercise—that of consenting (or not) to a president’s nomination. Without that consent no nominee may be appointed to the Court.
Within hours of Scalia’s death McConnell announced that the Senate would not hold hearings or votes on whomever President Obama might nominate in the balance of what was, of course, an election year. In other words, there would be no confirmation process for any nominee. Relying on Senate precedent, McConnell’s position—shared by other Republicans in their majority of 54—was that the next president, whoever that might be, Republican or Democratic, should fill the vacancy. Which meant, of course, that voters would have the chance to pick the person who would nominate the next justice.
In retrospect what is striking is not only that the Republican majority held its no-consent position against Obama’s eventual nominee, Judge Merrick Garland, and thus kept open Scalia’s seat for the next president to fill, but also that Trump, not known for his constitutionalist interests, took seriously the possibility that he would be the one nominating Scalia’s successor.
Trump prepared for such a moment by consulting with conservative lawyers and scholars who specialize in judicial selection and devising a list of 21 prospects for the Court, whom he held out as judicial conservatives all. Trump said he would pick the next justice and any others from this list. He ran on that list, in effect, by distinguishing between the kind of judge he would pick and the kind Hillary Clinton would choose. Trump said his kind would “interpret the Constitution the way the Founders wanted it interpreted.” Clinton said her kind would advance liberal causes such as abortion rights.
Trump’s position on judicial selection benefited him on Election Day. In exit polling, one of every five voters said that Supreme Court appointments were the most important factor for them in voting for president. And of those voters, 57 percent favored Trump and 40 percent supported Clinton.
By the usual measures, Gorsuch is an outstanding choice. He has impressive degrees—a B.A. from Columbia, a J.D. from Harvard, and a doctor of philosophy from Oxford. After clerking for Justices Byron White and Anthony Kennedy, Gorsuch became a highly regarded litigator at Kellogg Huber, one of Washington’s elite law firms. He left private practice to serve as a high-level official in the Justice Department, before President George W. Bush appointed him to the Tenth Circuit, which hears cases from eight western states. His estimable record as a judge includes compelling opinions on, among other topics, religious liberty and criminal law and procedure. He is widely praised for his character and judicial temperament. At only 49, he could have a long tenure on the Court.
Most notable about Gorsuch is, of course, his Scalia-like judicial philosophy. Throughout his campaign Trump evinced his admiration for Justice Scalia and his approach to interpreting the law. Indeed, it was a constant talking point for Trump that he wanted to nominate someone jurisprudentially like Scalia. He has done that in choosing Gorsuch.
Like Scalia, Gorsuch is a textualist in the sense that he seeks the meaning of a statute in the actual terms of the law—and not in manipulable legislative history. Like Scalia, he is an originalist in the sense that he seeks the meaning of a constitutional provision through study of how it was understood at the time of its enactment.
Also like Scalia, Gorsuch seeks to preserve the structure created by the Constitution, as found in the separation of powers and federalism. Indeed, Gorsuch may be more open than Scalia was to challenges to the modern administrative state, where lie perhaps the most important legal issues for the constitutional lawyers of Gorsuch’s generation.
Yet another way in which the judge is like Scalia is in his writing, which is consistently excellent and often touched with humor. Consider his 2012 opinion in an otherwise dry dispute between two insurance companies:
Those who follow the Supreme Court will be grateful that another fine stylist will soon be sitting among the justices.
Assuming, of course, that Gorsuch is confirmed. Democrats are in a nasty Trump-fighting mood, and Senate Democrats are talking of filibustering the nominee. Republicans, with a majority of 52, would need 60 votes to end a filibuster, a number that could be hard to reach. Four years ago Senate Democrats did away with the filibuster for lower-court nominations. Senate Republicans should now extend that rule to Supreme Court nominations, if need be. Would the judge from Colorado be worth that extraordinary effort? Indeed, he would.
