Justice Antonin Scalia cast an enormous shadow across the legal landscape of this Country. Throughout his nearly 30 years on the Supreme Court of the United States, he applied his conservative, “originalist,” “strict constructionist” judicial philosophy to the Court’s decisions. He profoundly impacted the Court and shaped its opinions. He is widely regarded as one of the Court’s most influential justices in modern times. His untimely death in February 2016 left a tremendous void on the Court; a void newly-elected President Donald Trump promised to fill with a like-minded conservative jurist.
Virtually every person in America read or heard about President Donald Trump’s first nomination to the United States Supreme Court, Judge Neil Gorsuch. Judge Gorsuch is a Federal Appeals court judge serving on the United States Court of Appeals for the Tenth Circuit. Among the questions posed by many court observers, commentators and conservatives following this nomination are: (1) did President Trump keep his word to appoint a conservative jurist to replace Justice Scalia and (2) if Judge Gorsuch is conservative, will he stay that way or is he another David Souter?1 Numerous friends and family members asked me these same questions. I decided to make an effort to answer these questions and, now, share these answers with you.
Questions such as these are not the easiest to answer, particularly the questions over the concerns the judge might turn out to be a “secret” liberal, like Justice Souter. To satisfy myself of Judge Gorsuch’s conservative bona fides, I delved into his background, biographical data and court decisions. I also reviewed opposition research and opinions, as well as portions of the judge’s confirmation testimony (both at the original confirmation and the hearings going on as this is written). My conclusion is simple: Judge Gorsuch is a principled Constitutional conservative jurist. Unlike Justice David Souter, Judge Gorsuch is the real deal. While trying to divine how a Supreme Court nominee will rule once he or she is actually a member of the Court is inherently speculative, the “tea leaves” indicate President Trump selected a man well-suited to picking up Justice Scalia’s mantle on the United States Supreme Court. Allow me to explain how I reached these conclusions.
Neil McGill Gorsuch was born in Colorado in 1967. Anne Gorsuch, the judge’s mother, served in the Colorado state house of representatives and, later, served as the Administrator of the EPA in the Reagan Administration. He was raised Catholic and attended Catholic prep schools, graduating from Georgetown Preparatory School in Maryland in 1985.
Neil Gorsuch earned his bachelor of arts from Columbia University in 1988, where he graduated with honors. He obtained his law degree from Harvard Law School, where he also graduated with honors in 1991 (he was classmate of former President Barack Obama at Harvard Law). He also obtained a doctorate in philosophy from Oxford University in England in 1995 (his dissertation was written on the right to assisted suicide). Gorsuch clerked for the U.S. Court of Appeals for the D.C. Circuit, then for Justices Byron White and Anthony Kennedy on the United States Supreme Court, ending in 1994. He was then in private practice from 1995 to 2005, followed by a short stint at the U.S. Department of Justice during George W. Bush’s administration. President Bush 43 appointed him to the court of appeals. He was confirmed on July 20, 2006.2
Those of you concerned over Judge Gorsuch’s conservative credentials will be well pleased to learn Judge Gorsuch is from a conservative Republican family. He enjoyed a conservative, religious education. He remained true to his conservative upbringing throughout college and law school. From there he remained a conservative lawyer and judge.
A conservative reader might question the Judge’s college education. After all, just how many “conservatives” are produced by Columbia University? Columbia is one of the bastions of leftist academic thought in America. But, what did Neil Gorsuch do at Columbia? He challenged the liberal/leftist orthodoxy at the University as a writer for the school paper, the Columbia Spectator. He defended conservative principles and conservative leaders. For instance, he wrote an eloquent defense of President Ronald Reagan’s involvement in the Iran-Contra scandal, entitled, “Let’s let the commander in chief lead.” See Here
While studying at Columbia University he also co-founded a paper, The Federalist, and a magazine, The Morningside Review. The far left Alliance for Justice contends these publications were founded by Gorsuch to “counter . . . what he . . . saw as the predominance of liberal political views at the University.” See Here Leftist campus radicals even attempted to organize a boycott of The Federalist newspaper for alleged connections to the Coors family (of Coors beer fame). See Here
The significance of Judge Gorsuch’s college years is to demonstrate that even at a young age he was a principled, courageous conservative. Why characterize him as courageous? This writer can assure you holding oneself out publicly as a conservative at an institution like Columbia University takes tremendous courage. The pressure, ridicule and potential retribution he endured, or subjected himself to, from campus leftists, student groups and professors most certainly required courage.
While his college record is important, and impressive, the single most persuasive piece of information I uncovered about Judge Gorsuch is a tribute he made recently to the late Justice Scalia. The tribute was made as part of the Case Western Reserve University School of Law, 2016 Sumner Canary Memorial Lecture. It is entitled, “Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia.” You may find it here: See Here
The lecture is a powerful, moving tribute to Justice Scalia. In it, Judge Gorsuch focused on the differing roles of judges and legislators in our form of government and what Justice Scalia did to remind us of those differences. Judge Gorsuch stated:
But tonight I want to touch on a more thematic point and suggest that perhaps the great project of Justice Scalia’s career was to remind us of the differences between judges and legislators. To remind us that legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But that judges should do none of these things in a democratic society. That judges should instead strive (if humanly and so imperfect-ly) 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.
Hon. Neil M. Gorsuch, 2016 Sumner Canary Memorial Lecture: Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia, 66 Case W. Res. L. Rev. 905, 906 (2016).
Judge Gorsuch goes on to elucidate the reasons why he is a “believer that the traditional account of the judicial role Justice Scalia defended will endure.” The Judge undertakes a powerful defense and explanation of the Constitution, of the Separation of Powers created by the Founders in the Constitution, of the unique nature of the Judicial Power granted to judges by Article III of the Constitution, how that power is different from the legislative power and why Justice Scalia was correct about all of the above.
This writer does not want to turn this short paper into a lengthy, esoteric discussion of complex (and uninteresting) legal and Constitutional issues and theory. For those who enjoy such things, read the entire tribute made by Judge Gorsuch. Simply stated, this tribute provides a detailed insight into Judge Gorsuch’s own ideas about the role of judges in our Constitutional Republic; insights the public will not often get of a nominee to our Nation’s highest court. This insight displays the judge’s deeply held conviction that Justice Scalia’s approach to the exercise of the Judicial Power, including the late Justice’s approach to Constitutional and statutory interpretation, is the correct approach.
Additional writings from Judge Gorsuch provide further insight into his philosophy. One such writing is an article published in the National Review. The article is entitled “Liberals and Lawsuits,” and in it he decried the use of courts by the left for social reform. See Here This article is a good read and Judge Gorsuch makes a good case why the left’s “addiction” to constitutional litigation is bad for the country, the judiciary and the left itself. The article is a forceful indictment of the Democratic Party’s use of litigation.
On the bench, Judge Gorsuch displayed a decidedly conservative bent in his decision-making. He voted with the majority in Hobby Lobby Stores, Inc. v. Sebelius, 723 F. 3d 1114 (10th Cir. 2013), which held a closely held corporation could sue under the Religious Freedom Restoration Act (42 USC §2000(bb)) to stop, on religious grounds, the Federal DHH regulations requiring the company to provide certain types of contraception. (This decision was ultimately affirmed by the United States Supreme Court, see Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014)).
In another case involving an action under 42 U.S.C. §1983 (commonly used in police brutality cases to bring a Federal claim against State law enforcement), Judge Gorsuch concurred to address the potential for abstention (a Federal court not exercising its jurisdiction) where the issue isn’t waived and where state court would afford a remedy. See Browder v. City of Albuquerque, 787 F. 3d 1076 (10th Cir. 2015). This case involved a cop who raced down the street on a personal errand (not on police business) and caused an accident, injuring someone. Noting such cases usually result in state law civil litigation, Judge Gorsuch concurred observing that in an appropriate case, where the defendant did not waive the issue, “comity” and “federalism” might lead the court to not decide a similar case.3
In other cases, Judge Gorsuch expressed skepticism about what is known as Chevron deference, referring to Chevron USA, Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). In this case, the United States Supreme Court ruled Congress could grant an agency of the Executive branch authority to interpret an ambiguous Federal statute, even if that interpretation conflicts with a court’s interpretation of the same statute. On principled Constitutional, Separation of Powers grounds and on practical grounds, Judge Gorsuch questioned the wisdom of Chevron deference. See Gutierrez-Brizuela v. Lynch, 834 F. 3d 1142 (10th Cir. 2016).4
In another case touching on the Right to Bear Arms, involving a violation of the Federal statute barring felons possessing firearms, Judge Gorsuch affirmed the conviction (the man was erroneously instructed by a judge who presided over a previous guilty plea that he was not going to be a convicted felon as a result of the plea), but noted, our country has a “long tradition of widespread lawful gun ownership by private individuals,” that the United State Supreme Court ruled these rights were protected by the Second Amendment and “may not be infringed lightly.” See U.S. v. Gaines-Perez, 667 F. 3d 1136 (10th Cir. 2012).
In literally case after case, Judge Gorsuch took what one could properly characterize as a conservative position. See Druley v. Patton, 601 Fed Appx 632 (10th Cir. 2015)(case denying constitutional claims by a transgender inmate); U.S. v. Adame-Orozco, 607 F. 3d 647 (10th Cir. 2010)(case affirming a lower court’s interpretation of immigration law); Garcia-Carbajal v. Holder, 625 F. 3d 1233 (10th Cir. 2010)(case narrowly construing arguments presented by immigrant in lower court and finding arguments not preserved for appeal); Green v. Haskell County Board of Commissioners, 568 F. 3d 784, denial of rehearing en banc, 574 F. 3d 1235 (10th Cir. 2009)(where Judge Gorsuch dissented to denial of rehearing en banc in a case in which the 10th Circuit found an First Amendment Establishment Clause violation by the county allowing a Ten Commandments display on the courthouse lawn); American Atheists, Inc. v. Duncan, 616 F. 3d 1145 (10th Cir. 2010)(where Judge Gorsuch dissented to denial of rehearing en banc in a case in which the 10th Circuit found an First Amendment Establishment Clause violation by the state allowing crosses to be erected on public property in honor of fallen State Troopers); Wilderness Society v. Kane County, 632 F. 3d 1162 (10th Cir. 2011)(adopting a strict interpretation of Article III “standing” resulting in the dismissal of litigation brought by an environmental group); Shook v. Board of County Commissioners, 543 F. 3d 597 (10th Cir. 2008)(denying class certification to a proposed class action brought by inmates); Harvey v. Segura, 646 F. Appx 650 (10th Cir. 2016)(rejecting an inmate’s claim that his Free Exercise rights were violated by being subjected to a search by a member of the opposite sex and by confiscating religious head covering).
There are many more such cases, but hopefully the point is made. Cumulatively, the Judge’s background, upbringing, education, writings, experience and judicial decisions depict a staunchly conservative Constitutionalist. This writer could find nothing at all in the Judge’s background, public utterances or decisions to indicate to the contrary. President Trump most assuredly kept his word and appointed a worthy successor to the late Justice Scalia. Whether Judge Gorsuch continues to follow the same path on the United States Supreme Court, only time will tell, but the “tea leaves” indicate he will. The concerns of those worried about the legacy of Justice Scalia and the direction of the Court should be assuaged by this nominee.
Randy Street, Esq.
March 28, 2017
1 To the uninitiated, former Justice David Souter was appointed by President George H. W. Bush to the Supreme Court in 1990. Former New Hampshire Governor John Sununu was President Bush’s Chief of Staff at the time and was instrumental in obtaining Souter’s nomination. Governor Sununu assured conservatives at the time that Souter would be a terrific appointment. Souter was “conservative” in his early years on the Court, but eventually turned out to be one of the Court’s most liberal members. Souter even stayed on at the Court long enough to allow President Obama to name his successor in 2009, rather than retiring earlier when President George W. Bush could make the appointment. Given Souter’s deception, conservatives everywhere worry whether conservative nominees are going to remain so once they get on the Court.
2 In the interest of brevity, citations to this biographical data are omitted. I will provide those upon request.
3 To those who may be unfamiliar, “comity” in this context is the principle by which courts of one jurisdiction (here the Federal government) give effect to the laws or decisions of another jurisdiction (here, state court). “Federalism” refers to the allocation of power and governing authority between a national government and local governments.
4 The reader may also note, Judge Gorsuch discussed Chevron deference in his tribute to Justice Scalia as well.
Randy Street, Esq.
Hunting, fishing, gun toting Louisianian. Republican. Attorney. Pro-gun. America First. Donald J. Trump is my President. #MAGA