Back in December I described the incoming Trump administration as a “populist-conservative melting pot.” As the president-elect announced his cabinet picks, he was threading a needle between the populist base that elected him in Rust Belt states and the Republican establishment he needs to work with in DC.
He’s still threading that needle. Where his immigration actions showed his cocksure populist side—poorly executed, yet still popular with the public because they spoke to long-neglected concerns—his choice of Neil Gorsuch to replace the late Antonin Scalia on the Supreme Court is a mundane embrace of standard conservative principles. If you had a team of scientists build the perfect Republican judicial nominee in a lab, they would come up with this guy.
The gravest charge against Gorsuch is that he made a joke about fascism once in his prep-school days. And a sober Supreme Court pick is exactly the kind of stabilizing move that both the Court and the country need from Trump right now.
Gorsuch is currently a judge for the Tenth Circuit Court of Appeals. He’s a direct intellectual descendant of Scalia, but with a handful of differences, some more important than others.
Scalia, of course, is best remembered for advancing and implementing the judicial philosophy of “originalism.” The core convictions behind originalism are that (A) laws mean something when they are enacted and (B) the job of a judge is to figure out what laws mean, not to twist them to say what he thinks they should.
This is easier said than done, and Scalia applied his considerable intellect to the many thorny questions this approach raises. He was a key figure, for instance, in the shift in focus from “original intent” to “original public meaning.” To uncover the former, judges rely heavily on legislative history, seeking to discover what policymakers were trying to accomplish when they wrote the law. In the latter—as Gorsuch himself put it in a speech celebrating Scalia’s work last year—judges try to ascertain “what a reasonable reader at the time of the events in question would have understood the law to be.” The idea is that the words of the law itself, not the subjective intent of the people who wrote those words, are what actually binds us.
Gorsuch’s approach mirrors Scalia’s not just in philosophy but also in practice. He came down on the side of Hobby Lobby in the contraception-mandate case bearing its name, arguing that the Obama administration had violated the religious liberty of the company’s owners. Scalia took the same position.
Both men also share a laudable willingness to rule in favor of criminals when the law requires it. Gorsuch, for instance, once urged his circuit to reconsider a precedent holding that someone could “knowingly violate” a law against felons possessing firearms even if he didn’t know he was a felon. (This odd situation occurred because a judge in the defendant’s previous case had wrongly implied that his plea deal would leave him “not convicted of a felony.”) By the same token, Scalia once decided that a provision of the Armed Career Criminal Act was unconstitutionally vague, granting relief to a man who was indeed a career criminal. (The vagueness stemmed from the law’s definition of a “violent felony” to include felonious “conduct that presents a serious potential risk of physical injury to another.”)
There’s one major difference between Scalia and Gorsuch, though, and it’s one that conservative foes of regulation will love.
Since the Chevron case in 1984, the Supreme Court has maintained that executive agencies should be given broad deference when they interpret ambiguous laws. Unsurprisingly, agencies tend to use this discretion to expand their power to regulate. Scalia not only supported but played an active role in expanding this doctrine, both on the DC Circuit and at the Supreme Court (which he joined in 1986). “Congress now knows that the ambiguities it creates, whether intentionally or unintentionally, will be resolved, within the bounds of permissible interpretation, not by the courts but by a particular agency, whose policy biases will ordinarily be known,” he wrote in a 1989 law-review article.
This thinking was of a piece with Scalia’s belief that courts should defer to the elected branches of government when possible, but Congress has not proved to be as forward-thinking as he apparently hoped, and critics charge that it is an abdication of the judicial role to allow executive agencies to decide for themselves what the law allows them to do. Gorsuch has sided with those critics.
The doctrine “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,” he wrote in a concurring opinion last year. “Maybe the time has come to face the behemoth.”
Other differences are less consequential or at least unclear. While an eloquent and sometimes amusing writer, Gorsuch did not inherit Scalia’s penchant for rhetorical bomb-throwing, either from the bench or in his opinions. Where Scalia believed the Constitution to be silent on abortion—it neither protected the practice nor required it to be banned—there are hints in Gorsuch’s writing that he might think the unborn are constitutionally entitled to the equal protection of the laws. And if confirmed, Gorsuch will become the Court’s only Protestant; the tribunal has been Protestant-free since John Paul Stevens’s retirement in 2010.
That brings us to the politics. The question for Senate Democrats is whether to filibuster, a move that would require 41 of the 48 votes in their caucus. It’s always possible to whip up liberal opposition to a judicial nominee: already we are hearing cries that Gorsuch is “out of the mainstream.”
Some on the left have urged against this course. A former acting solicitor general under Obama, for instance, noted in the New York Times that Gorsuch, with his skepticism of government power and strong belief in the rule of law, will not hesitate to check President Trump’s overreaches. Efforts to undermine Gorsuch are also made difficult by his impeccable credentials, including degrees from Columbia, Harvard Law, and Oxford and a Supreme Court clerkship.
(Gorsuch’s elite degrees are actually sad, in a way, because Trump’s short list was notable in that it didn’t include a lot of Ivy Leaguers. All of the current justices attended law school at either Harvard or Yale, though Ruth Bader Ginsburg transferred to Columbia before graduating.)
But the stakes are quite high. As it stands, there’s a 4–4 conservative/liberal split that turns into a 5–3 liberal majority on issues where the squishy Anthony Kennedy defects—meaning the best-case scenario for conservatives is usually a draw, while liberals can still win some cases. With Gorsuch, the Court’s previous balance, with Kennedy as the winning vote for whichever side he chooses, will be restored, and the Court will be just one good Trump nomination away from a solid conservative majority.
There is also a tit-for-tat element to the Democrats’ thinking: last year, Republicans refused to confirm Obama’s nominee, Merrick Garland—allegedly “stealing” the seat—and there’s no reason Democrats can’t respond in kind.
If that happens, though, Republicans might pull a tit-for-tat of their own. In 2013, Democrats used the “nuclear option” to end the filibuster for non-Supreme Court nominations so they could confirm Obama’s picks over conservative opposition. Some Republicans have expressed a reluctance to return the favor, but the temptation may prove irresistible if Democrats refuse to confirm an undeniably qualified Supreme Court nominee who is much like Scalia, the very man he would replace. Trump has already endorsed this course of action.
Killing the filibuster now would also make it easier to replace a liberal justice with a conservative in the event that a liberal retires or passes away during the Trump administration. Doing the deed at that point, in the service of radically altering the balance that held before Scalia’s death and Trump’s election, would likely have poorer optics.
This is one of the most important fights that will play out this year. Both the balance of the Court and the traditions of the Senate hang in the balance.
Conservatives can almost taste the end of liberal judicial activism, envisioning a future where judges apply the law while leaving the other branches of government to make and enforce it. Liberals, by contrast, see a massive threat to their decades-long string of victories, in which sympathetic judges have discovered that—as it just so happens—the “living Constitution” has evolved into a mandate for left-wing policies.
Robert VerBruggen is managing editor of The American Conservative.