Trump Picks 10th Cir. Gorsuch for SCOTUS

By: Haley Goode, 1L
Contributing Writer

On February 1, 2017, President Trump nominated 10th Circuit Court of Appeals Judge Neil Gorsuch to the Supreme Court, filling the late Antonin Scalia’s seat which has been vacant for close to a year. Judge Gorsuch has an impeccable academic record, having received his undergraduate degree from Columbia University and his J.D. from Harvard Law. He is both a Truman and a Marshall Scholar and has a Ph.D. from Oxford University. A native of Colorado, Judge Gorsuch is no stranger to Washington, D.C. His mother’s work as the first female head of the EPA moved the family to the area when he was a teenager.

Gorsuch

Judge Neil Gorsuch | Source: salon.com

In the days following President Trump’s nomination, Judge Gorsuch’s jurisprudence has been compared to Justice Scalia’s, and for good reason. Both men are committed textualists, represent a solid conservative vote, and write in a way that is both clear and emphatic. According to visiting W&L Law Professor Todd Peppers, when Judge Gorsuch writes an opinion, he “is not as much of a bomb-thrower as Scalia, which may mean that he will have more of an influence on the court.” Justice Scalia, whose most spirited dissents are contained in King v. Burwell (Affordable Care Act), Lawrence v. Texas (gay rights), and Boumediene v. Bush (constitutional rights for non-Americans), is notorious for his unashamed devotion to an originialist interpretation of the Constitution. Judge Gorsuch, while nearly Scalia’s ideological twin, delivers his opinions in a less explosive fashion. Notable opinions from Judge Gorsuch include a concurring opinion in Hobby Lobby Stores, Inc. v. Sebelius, which defended the Religious Freedom Restoration Act; Gutierrez-Brizuela v. Lynch, which questioned the Constitutionality of the famous administrative law case, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.; and United States v. Games-Perez, which showcases Gorsuch’s strict textualist analysis of criminal statutes.

Though Judge Gorsuch’s appointment has been deemed a “Gift to Democrats” by The Washington Post, there has still been undeniable resistance to his confirmation from the Left. While President Trump has urged Congress to use the “nuclear option” (that is, to change the Senate rule that mandates the number of votes needed to confirm a presidential appointment) to push Judge Gorsuch’s confirmation forward, Professor Peppers believes that these remarks are merely inflammatory. “I think right now the Democrats are trying to figure out whether or not they should use political capital in this appointment or the next one. I think that they may want to wait and save that political capital for the replacement of someone like Ginsburg.”

Because Judge Gorsuch’s jurisprudence mirrors that of Justice Scalia, it does not appear that the dynamic of the Court will substantially change. With the replacement of Justice Ginsburg (83) or Justice Kennedy (80), however, the possibility for a shift in the Court’s ideology is certainly possible. This calls the future of several past controversial decisions, most notably Roe v. Wade, into question. While there are no cases in Judge Gorsuch’s jurisprudence that are directly on point, Professor Peppers points out that “if he is a textualist and cut from the same cloth as Scalia, it is possible that [Judge Gorsuch] thinks Roe v. Wade is bad constitutional law. This may be a piece in the [Republican] attack against Roe.” For the current moment, however, it appears that the appointment of Judge Gorsuch leaves the Court in the same position as it was when Scalia was on the bench.

In a lecture given at Case Western University School of Law last year, Judge Gorsuch stated, “Judges should . . . 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.”

If history repeats itself, we may need only look back as far as Antonin Scalia to see the future of the Court and American jurisprudence.

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