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SCOTUS Nominee Gorsuch – A Look ahead

Conservatives are ecstatic over President Trump’s nomination of Judge Neil Gorsuch to fill Justice Scalia’s vacant seat on the U.S. Supreme Court, and rightly so.  Currently serving on the 10th Circuit Court of Appeals, Judge Gorsuch is known for his judicial humility, leaving the role of legislating to the legislators, and fairly applying and interpreting the law.

Judge Gorsuch is a man with an impressive resume, as one would expect in a Supreme Court nominee.  A graduate of Columbia and Harvard Law School, he earned his doctorate at Oxford, studying under the preeminent moral philosopher and natural law theorist John Finnis.  He clerked for both Justice Byron White (appointed by John F. Kennedy) and Justice Anthony Kennedy.

Ten years ago, Judge Gorsuch was appointed to the 10th Circuit Court of Appeals (Colorado, Wyoming, Kansas, Utah, New Mexico and Oklahoma) by a unanimous voice vote in the U.S. Senate, meaning that no senator opposed his nomination.  An impressive feat when you consider the rancorous gauntlet that awaits him in the upcoming confirmation hearings.

Democrats are already raising their “serious concerns” about the fact that he is “not mainstream” and that they consider him to lack respect for “constitutional principles,” all of which (and more) is code for “we think he’s a social conservative and we think he’s a judicial activist.”  The script falls flat in the face of the facts: Judge Gorsuch has proven himself to be a “judge’s judge,” more committed to following the law than an agenda, which is difficult for many liberals to understand, given their frequent use of the judiciary, especially the Supreme Court, to impose their social agenda on the country.

On the bench, Judge Gorsuch has shown himself to be an originalist and a texturalist in the school of Scalia, believing that a judge’s job is to interpret laws, not to make them.  His firm grounding in sound legal reasoning and the natural law (after all, he was a student of John Finnis) means that he is a deep and thorough thinker.  His devotion to sound jurisprudential principles means that his decisions are not swayed by desired political outcomes.

Accordingly, Judge Gorsuch, much like his predecessor and role model Justice Scalia, will take a dim view of attempts to find new rights in the Constitution, which our founders never envisioned.  It also means that Judge Gorsuch will defend the undeniable constitutional rights firmly established by our founding fathers, including the free exercise of religion.  For example, on the 10th Circuit Court of Appeals, he heard the cases of both Hobby Lobby and the Little Sisters of the Poor, finding in both instances that the constitutional right to free exercise of religion, enshrined in our Constitution and strengthened by Congress through the Religious Freedom Restoration Act, was unconstitutionally burdened by the Obama Administration’s contraception mandate.

It is important to remember that as an originalist, Judge Gorsuch will not concern himself with the outcome of a case, but rather the reasoning and logic behind it.  In a memorable line from his remarks at the White House Tuesday night he stated, “a judge who likes every outcome he reaches is likely a bad judge.”  The rule of law is promoted and protected by following reason where it leads, not by determining your destination and dragging a tortured reason along by the collar, as we saw in Roe v. Wade and more recently in Obergefell v. Hodges.

A lot will be published in the coming days and weeks about Judge Gorsuch. Reporters will pick apart his opinions and try to pigeon-hole him into deplorable labels, taking passages out of context and finding “evidence” of his alleged prejudices in footnotes to footnotes.  Such efforts will do nothing but demonstrate how strong of a nominee he really is and the lengths to which liberals will go in order to discredit him.  We have seen it all before.

As we move forward, here are a few take-aways and some speculation:

  1. Given his impeccable credentials and the previous unanimous vote on his appointment to the 10th Circuit, Judge Gorsuch has a strong probability of being confirmed, despite Senate Minority Leader Chuck Schumer’s promise to fight “tooth and nail” any of Trump’s nominees to the Supreme Court.  And if the Senate Democrats attempt to filibuster, then Senate Republicans may very well turn to the “nuclear option.”  The next several weeks are likely to be a circus.  Will Democrats boycott?  Or stage a walk-out?  Or will they go so far as to take a page out of their House colleagues’ book and camp out in the Senate chamber?  Despite their protestations, any way you cut it, Judge Gorsuch is likely to be confirmed.
  2. The balance of the Court will be restored with the appointment of a judge who closely matches the judicial philosophy of the late Justice Scalia.  The Court will soon be back to business as usual, no longer tied up by the 4-4 split.
  3. The real fight and the most important appointment will be the next appointment—the appointment that would tip the balance of the Court.  Rumors have been swirling for months that Justice Kennedy is considering retirement.  Would he be more likely to do so after seeing the caliber of President Trump’s choice—his former clerk—in this nomination?

We expect the Democrats to fight Judge Gorsuch’s nomination, but when it comes to the next nomination, it will be an all-out war, as both sides know what is at stake—a generation (if not more) of jurisprudence in this country.  However, Democrats have to tread carefully the closer we get to the 2018 mid-term elections when 23 Senate seats held by Democrats are up for re-election.  This includes ten seats in states carried by Trump, widely acknowledged to be at high risk for turning red.  If the Democrats push too hard, they risk alienating voters who supported Trump and losing these seats.  This is especially the case if the next Supreme Court nominee has the blue-collar appeal of a judge like Thomas Hardiman, from the 3rd Circuit Court of Appeals (Pennsylvania, New Jersey, and Delaware) and “runner-up” in this nomination process, who is said to have driven a taxi as a young man to support his education.

President Trump made an excellent choice in nominating Judge Gorsuch, a man who will defend the Constitution and protect our God-given rights for years to come.