Ramesh Ponnuru:
President Trump’s nominee to the Supreme Court will be Neil Gorsuch, a well-respected conservative whose legal philosophy is remarkably similar to that of Antonin Scalia, the justice he will replace if the Senate confirms him. He is, like Scalia, a textualist and an originalist: someone who interprets legal provisions as their words were originally understood.
Gorsuch is a Colorado native and the son of a Republican politician, the late Anne Gorsuch Burford, who was a state legislator and then director of the Environmental Protection Agency for President Reagan. He attended Columbia University and Harvard Law School, after which he clerked for D.C. Circuit Court judge David Sentelle. He then clerked for Supreme Court justices Byron White and Anthony Kennedy in 1993–94. The next year he studied for a doctorate of philosophy at Oxford University under the legal philosopher John Finnis.
After spending ten years at a law firm in Washington, D.C., Gorsuch went to work for the Justice Department in 2005–06. President George W. Bush nominated him to the Tenth Circuit Court of Appeals, which covers Colorado, Kansas, Oklahoma, Utah, Wyoming, and New Mexico. His confirmation was quick and uncontroversial.
That Judge Gorsuch’s judicial philosophy is similar to Justice Scalia’s is evident from a tribute the former gave after the latter’s death. In that tribute, Gorsuch summarized and endorsed Scalia’s method of legal interpretation:
Judges should instead 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. As Justice Scalia put it, “if you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”
A lawyer who clerked for both Justice Scalia and Judge Gorsuch sees parallels between the two men. Gorsuch is “a law-has-right-answers kind of guy, an originalist and a textualist,” he says. “He believes that the enterprise of law is real and worth doing and not just politics by other means.”
A low-profile 2012 case, U.S. v. Games-Perez, illustrates how Gorsuch has applied these views. At issue was a federal law that authorizes prison terms for anyone who “knowingly violates” a ban on the possession of firearms by a convicted felon. A precedent in the Tenth Circuit held that a defendant who knew that he had a firearm could be sentenced under that provision even if he did not know that he was a convicted felon. (In the case Gorsuch was deciding, Miguel Games-Perez had previously taken a plea deal that the presiding judge had misdescribed as an alternative to being “convicted of a felony.”)
Gorsuch participated in a panel of three of the circuit’s judges that affirmed the prison sentence. Gorsuch concurred in the result because he felt bound by precedent. At the same time, he made a powerful argument that the circuit’s precedent could not square with the text of the law. And when the case later came before the circuit, he urged it to reconsider that precedent.
The case brought together several strands of Gorsuch’s thinking. It demonstrated his willingness, shared with Scalia, to overturn a criminal conviction when a proper reading of the law required it. He paid close attention to the text and grammar of the law while expressing skepticism about letting legislative history guide his decision. “Hidden intentions never trump expressed ones,” he wrote, adding an aside about “the difficulties of trying to say anything definitive about the intent of 535 legislators and the executive.” (Scalia was a foe of the judicial consideration of legislative intent for similar reasons.) And it showed, as well, his understanding that a judge must follow his duty even when it leads somewhere he dislikes. “He cared a lot about what the precedents are,” says the former clerk. “He was not interested in bending them or the usual tricks judges can use for getting around them if they don’t like them.”
Also like Scalia, Judge Gorsuch is skeptical of the “dormant commerce clause”: the longstanding legal doctrine that the Constitution’s grant of power over interstate commerce to Congress implies limits on the states’ power over it even when Congress has not spelled out those limits. And he shares Scalia’s preference for clear legal rules over vague “standards” that judges can manipulate to reach desired conclusions.
The former clerk sees similarities between Gorsuch and Scalia that go beyond legal issues. “[Gorsuch] took a lot of care with writing,” he says. “He has a pretty well-earned reputation as one of the best writers on the federal bench. He always cared a lot about an opinion having his voice.” The same was famously true of Scalia. But the voices are different: “Justice Scalia had a sharp pen for dissents. [Judge Gorsuch] is just temperamentally not inclined to do that.”
The difference may be related to another one: Gorsuch has expressed an optimism about the trajectory of American jurisprudence that Scalia did not. His tribute to the late justice argued that thanks in large part to Scalia, even liberals on the Supreme Court were more likely to look to the text and original public meaning of laws in making their decisions.
We need someone who stands up for our constitutional rights someone who reads the entire U.S. Constitution and not skip over the 2nd AMENDMENT as liberal pansies do and not one who says the U.S. Constitution gives you the right to walk naked down main street
Gorsuch is an excellent choice to replace Scalia.