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Boring Neil Gorsuch

Back in December I described the incoming Trump administration as a “populist-conservative melting pot.” [1] 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 [2] showed his cocksure populist side—poorly executed, yet still popular [3] with the public [4] 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 [5] 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.

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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 [6], 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 [7] 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 [8] 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 [9] 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 [10] 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 [11].

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 [12] 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 [13] the practice nor required it to be banned [14]there are hints in Gorsuch’s writing [15] 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.

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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 [16] 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 [17]. All of the current justices attended law school at either Harvard or Yale, though Ruth Bader Ginsburg transferred to Columbia [18] 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” [19] 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 [20] 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.

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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.
Follow @RAVerBruggen [21]

12 Comments (Open | Close)

12 Comments To "Boring Neil Gorsuch"

#1 Comment By Howard On February 5, 2017 @ 10:31 pm

A qualified, conventional pick: exactly what the country needs.

Heck no. Mostly because what the country needs is more fundamental than mere politics, and it is certainly more than can be provided by any judicial appointment.

#2 Comment By Michael Kaiser On February 5, 2017 @ 11:57 pm

Amazing how many “experts” on Scalia have no idea what they are talking about. Scalia, first and foremost, was, also by his own admission, a TEXTUALIST, of which, also by his own admission, originalism is a component or SUBSET. Please, learn what you are talking about or stop talking.

#3 Comment By RP_McMurphy On February 6, 2017 @ 1:53 am

“A sober Supreme Court pick is exactly the kind of stabilizing move that both the Court and the country need from Trump right now.”

Any pick apart from Merrick Garland will not be regarded by Democrats as stabilizing — it will be regarded as theft. All that remains now is the political war, something that many of us younger folks are now pledging our lives to. Once more unto the breach, dear friends.

#4 Comment By Argon On February 6, 2017 @ 2:04 pm

The Supreme Court nomination and review process has been barely functional for many years. There is no ‘normal’ or ‘conventional’. This is naked politics.

#5 Comment By KennethF On February 6, 2017 @ 2:22 pm

Merrick Garland is the boring, qualified, conventional pick that Obama and the country deserve.

Of course the author of this article prefers Gorsuch, for partisan reasons — never mind that the pick was blatantly stolen from Obama. There is nothing “alleged” about this theft: if the Dems had done this to GWB, GOP outrage would have been deafening, and justifiably so.

The Dems should block Gorsuch until another justice retires, at which time both Garland and Gorsuch could be confirmed. Of course this will never happen: the GOP will happily go nuclear, because the end will justify the means. And they will continue to pat themselves on the back as defenders of tradition and the Constitution.

#6 Comment By Miguel P On February 6, 2017 @ 8:49 pm

So it was ok for the Dems to go ‘nuclear’ when it suited their purposes, but it is a heinous sin should the GOP do so? Really…Unfortunately Merrick is dead in the water, and it is a wet dream for anyone to think that he will get a seat.

I firmly believe there should be more compromise among politicians as in the old days. Politicians should choose their battles wisely, and this isn’t the one to fight. Power politics is alive and well. Hopefully Trump will learn to bite his tongue and become more presidential.

#7 Comment By Apeh On February 6, 2017 @ 10:13 pm

Gorsuch was the leader of “The Fascist Club”. Facts are such annoying things. He even admitted it. Herr Gorsuch will not be on the bench anytime soon. 4th Reich sympathizers will have to wait until hell freezes over.

#8 Comment By Ml On February 6, 2017 @ 11:23 pm

The Democrats don’t have the votes to block Gorsuch. They just don’t.

#9 Comment By KennethF On February 7, 2017 @ 9:07 am

The Dems were wrong to go nuclear.

And of course Garland is dead in the water. I’m just stunned that so many in the GOP, including thinking conservatives here at TAC, are perfectly fine with the unjustifiable theft of Obama’s SCOTUS pick. Again, if the Dems had done this to the GOP, conservatives would scream about “yet another example of liberals/Dems putting ideology ahead of the country and the Constitution”. Now that the GOP has done it, then all of a sudden it’s a gray area. Partisan hypocrites.

#10 Comment By Blackhorse On February 7, 2017 @ 4:07 pm

There is already a conventional pick in queue, Merrick Garland. Or need only Republicans apply?

#11 Comment By Blackhorse On February 7, 2017 @ 4:09 pm

Gorsuch’s endorsement of freedom of religion legislation, however, is not conventional. His (likely) support of unbridled capitalism is not conservative.

#12 Comment By Siarlys Jenkins On February 8, 2017 @ 1:09 pm

Refusal to take a vote on Merrick Garland was nothing but a childish temper tantrum. But, actually, I don’t see much to admire about Garland, so I’m not shedding tears over what a great justice he would have been. As a matter of realpolitik, Democrats have nothing to gain putting up a high profile fight when their opponents hold all the cards. If they regain a senate majority in 2018, that would be a suitable time for payback. If Ruth Bader Ginsburg were to die in January 2020, the cry “let the people decide” would be quite appropriate — particularly if Trump is low in the polls.

On interpretation of the constitution, I think Gorsuch will be a healthy voice. I can defend measure such as the minimum wage and the National Labor Relations Act within an originalist framework, because the truth is, at the time the constitution was written, MOST commerce was indeed intra-state, whereas, by the 1930s, most commerce was interstate or international. Thus, while the wording and meaning of the constitution did not change, the scope of federal power changed, because the fraction of commerce that was within congressional jurisdiction had in fact expanded.

That is part of the genius of the constitution. It is rather short, compared to later constitutions written in other nations. It does not try to be a detailed laundry list of Good and Bad. It apportions and restrains jurisdiction. It is indeed flexible enough to respond to changing empirical circumstances, without requiring a new amendment every time some new technology comes into the world.

(This is why the Supreme Court was wrong in the Olmstead case to rule that since telephone wiretaps were not mentioned in the 4th amendment, therefore federal authorities needed no warrant to tap a telephone line. Justice Brandeis’s dissent, which ultimately was accepted by later majorities, better reflected an enduring constitution whose principles, as set forth when it was written, could be applied to changing circumstances. Scalia’s concurring opinion on why the use of infra-red scanners directed at a private dwelling required a warrant, were in line with Brandeis on this point.)

The rather flimsy argument for “a living constitution” often invokes trite remarks like, if the constitution never changed, slavery would still be legal, women would not be able to vote, we wouldn’t have an income tax… but the salient fact is, all these momentous changes were accomplished by constitutional AMENDMENT, not by judicial fiat.

The original principle of the Chevron ruling was that when an agency is writing regulations within its special expertise, it is entitled to deference. That is reasonable when it comes to, e.g., the EPA regulating how many parts per billion of mercury is tolerable for human health. The facts are not really subject to a vote. On the other hand, it seems plain that the Department of Education has no expertise whatsoever as to what constitutes a male or a female, and therefore, regulations in that vein are entitled to no deference whatsoever.

As in most things, the difficult part is finding the right balance.

#13 Comment By MJR On February 11, 2017 @ 1:20 am

I’m democrat and conservative and think we should just have Gorsuch approved and be done with it. His legal opinions seem sound and he is more than qualified.
The Merrick Garland situation was messy but there is nothing to be gained by rehashing it.
It’s time to move on.