Editor's Picks

President Trump’s latest unconventional nomination

Neil Gorsuch, Trump’s nominee for Supreme Court, faced an uphill battle for confirmation

Judge Neil Gorsuch, 49, is young President Trump’s pick to fill the vacant seat on the Supreme Court of the United States and one of the youngest nominees in the Court’s history.  As the late Antonin Scalia’s seat has sat empty for nearly a year, the Senate’s quickly become a battleground for the adverse political agendas in light of the new administration.

Over the last decade, Gorsuch has cultivated a reputation as a memorable and clear author of case opinions.

Similar to the justices who have come before him, Judge Gorsuch comes to the Court with an Ivy League pedigree.  He graduated from Columbia, Harvard, and Oxford.  Additionally, Gorsuch spent time clerking for two Supreme Court justices, Byron White and Anthony Kennedy, the D.C. Circuit Court of Appeals, and spent some time working for the Department of Justice.

After graduating from Harvard law in 1991 with former President Obama, Gorsuch has since spent a decade serving on the United States Court of Appeals for the Tenth Circuit in Colorado.  Embracing what the area offers, Gorsuch is a notable outdoorsman, known for fishing, skiing, and exercising his Second Amendment right via hunting.  However, the most notable characteristic of Gorsuch’s resume aside from his service on the 10th Circuit, is how he got there.  It was only weeks after his nomination in 2006 that the Senate confirmed him and the American Bar Association rated him as “unanimously well qualified” at the time.

Over the last decade, Gorsuch has cultivated a reputation as a memorable and clear author of case opinions.  Lawyers practicing in the 10th Circuit have claimed Gorsuch to be a “popular and approachable judge.”

Aligned with conservative legal thinkers on the court, many are hoping Gorsuch becomes the “intellectual heir” to the late Justice Scalia, often credited as one of the most conservative strongholds ever to sit on the bench.  Gorsuch considers himself much in the same, as an originalist through and through. SCOTUSblog, the leading Supreme Court blog, described the comparisons of Gorsuch and Scalia as “eerie.”

Some notable comparisons to the late Justice Scalia made on SCOTUSblog included:

Gorsuch’s opinions are exceptionally clear and routinely entertaining; he is an unusual pleasure to read, and it is always plain exactly what he thinks and why.  Like Scalia, Gorsuch also seems to have a set of judicial/ideological commitments apart from his personal policy preferences that drive his decision-making.  He is an ardent textualist (like Scalia) [and] is highly dubious of legislative history…

Some find Gorsuch’s “appeal” in their hopes he becomes an effective conservative nominee with the potential to win over swing-votes and lead the Court into making more conservative decisions.  According to Jeffrey Rosen, from the National Constitution Center, Gorsuch has an unusual, yet memorable, writing style as he is “[willing] to rethink constitutional principles from the ground up.”

Rosen further compared Gorsuch to Scalia by claiming he sometimes reaches more liberal conclusions, with particular regard to criminal laws and religious minorities, but distinguished him from Scalia due to his tendency to refuse deference to regulations. To Trump’s surprise, Trump’s regulatory decisions will unlikely be exempt.

A favorite amongst legal conservatives…liberals are less than enthused…

A favorite amongst legal conservatives, Gorsuch has recently gained support due to his sharp questioning of a three-decade old precedent set forth in the landmark 1984 Supreme Court ruling involving Chevron oil.  The Court held courts should defer to federal agencies’ reasonable interpretations of ambiguous federal laws.  However, Gorsuch strongly challenged the Chevron ruling in an immigration case last fall and stated the law’s meaning is to be interpreted by judges, not federal bureaucrats.

Other conservatives find their confidence in Gorsuch based on his views concerning religious freedom rights.  Last September, he joined a dissent arguing that Obamacare’s requiring contraceptives coverage were in direct conflict with the rights of religious non-profits.  Additional writings pulling favor from conservatives include a 2000 law journal article and 2006 book, “The Future of Assisted Suicide and Euthanasia,” displaying Gorsuch’s opposition of assisted-suicide laws, which currently exist in six states and is being considered in the District of Columbia.  Liberal are less than enthused by Gorsuch’s nomination, claiming they are fearful of his history in joining opinions often denying “individual rights,” such as in the debate about contraceptives being issued under the Affordable Care Act.

Gorsuch has much left to be uncovered.  Despite his overall strict adherence to originalist interpretations of the Constitution that Scalia implemented well, many of the country’s contemporary debates are not so easily settled.  Gorsuch’s adoption of the originalist method of reading the Constitution requires placing emphasis on the original intentions of the framers.  Nearly all originalists agree that the linguistic meaning of a provision was fixed at the time it was created, and judicial practice should adhere strictly to that original meaning.  While modern originalists continue to disagree on how to deal with social evolution, one cannot deny that times have changed since the 18th century.

A primary example of notable conflict is the modern debate of religious preference in lieu of legislation.  Gorsuch has proven to be a determined mind for the Christian faith, but has not yet taken a stance on behalf on any other.  Recently, Gorsuch and the rest of the 10th Circuit participated in Hobby Lobby v. Sibelius and Little Sisters of the Poor Home for the Aged v. Burwell.  His opinions focused on the parties’ conceptions regarding the requirements of their faith and suggesting the court show more deference to the parties’ religious beliefs, even if they stood in direct contrast the black-letter-law of the Affordable Care Act.

[T]he degree to which Gorsuch’s textual approach will help or hurt in cases [have] the potential to affect the community at large…

As it stands, Gorsuch’s fervent protections delivered in the form of pro-religion opinions circle around the deeply conservative view of pro-Christianity.  This then begs the question if Gorsuch would go to such lengths to defend another faith’s practice so publicly?

Another consideration for the future Court is that of the degree to which Gorsuch’s textual approach will help or hurt in cases that have the potential to affect the community at large.  Such as in the case of United States v. Games-Perez, Gorsuch opined that the mens rea requirement in the criminal code mandating it unlawful for felons to possess guns must be applied to both areas of concern: that the defendant know themselves to be a felon and know themselves to be in possession.  While protective of the criminal defendant, that line of thinking has the potential to frustrate the legal system on the grounds of technical statutes, rather than allowing the real issue (of not wanting felons to run around with guns) to be dealt with judicially.

Despite his disposition to write in the political “red,” Gorsuch’s resume is one of the most qualified to come from the Oval since Trump took office.

The greatest difference to be seen in the future is the Court’s view on Administrative Law principles.  As mentioned above, Gorsuch has made a name for himself recently with his opinion on the Chevron U.S.A. v. Natural Resources Defense Council case, which directs the courts to defer to reasonable agency interpretations of ambiguous statutes.  To illustrate, “Chevron deference is responsible for making the views of the current head of the Environmental Protection Agency far more important than the content of the Clean Air Act in terms of setting national anti-pollution policy.”  Gorsuch’s opinion is such a view inverts the separation of powers.

In his opinion of Gutierrez-Brizuela, another administrative law case, Gorsuch voiced that agencies write the law, but interpretation belongs to the courts.  In a way, it is a revolutionary method of approaching administrative law.

Despite his disposition to write in the political “red,” Gorsuch’s resume is one of the most qualified to come from the Oval since Trump took office.  Throughout confirmation hearings, Gorsuch did not seem to hurt his prospective confirmation. Democrats were unable to point out specific weakness.  However, that is not due to Gorsuch’s lack of weak points, as much as it was his refusal to answer questions.

For the liberal populous, Trump is really Gorsuch’s biggest problem.  While campaigning, Trump promised his nominees would be those to ultimately overturn the hot-button case of Roe v. Wade, directly dealing with the individual right to an abortion. While Gorsuch evaded that line of questioning, the hearings did not forget other Trump promises, such as White House Chief of Staff Reince Priebus assuring conservative activists that Gorsuch would be advancing Trump’s agenda from the bench.  Gorsuch’s evasion tactic was less convincing, simply stating “I’m my own man.”

Other Democrats questioned Gorsuch on his socially-oriented opinions, such as the one comparing homosexuality to bestiality or the one he issued against a truck driver who nearly froze to death.  Moreover, he refrained from responding to the call of the question about whether Brown v. Board of Education was correctly decided. While clearly enough to prevent Democrats from supporting him, there is more.  A former law student accused Gorsuch of making insensitive remarks about women and maternity leave in one of Gorsuch’s courses at University of Colorado School of Law.  Needless to say, Senate Minority Leader Chuck Schumer stated, “I think he’s made a very poor impression on most, many of our members,” and suggested the foundation of his opinions (or omissions) were not legally based, but were procured in attempts to hide in his thoughts.

Perhaps the most concerning of his opinions is that Gorsuch still views the right to gay marriage as “settled law,” as decided in the iconic Obergefell v. Hodges case in 2015, but cannot use similar perspective to support other social policies functioning as law.

Additionally, Gorsuch’s family history in Washington is not one to overlook.  His mother, Anne Gorsuch, ran the Environmental Protection Agency on the outset of the Reagan administration.  While technically never charged, she was forced to resign after facing criminal investigation and a House contempt of Congress citation over records related to political favoritism in toxic-waste cleanups.

Now with Gorsuch sitting as (probably) the most conservative justice on the Court, the next vacancy on the Court becomes crucial.

Gorsuch was officially confirmed on Aril 7th after the Senate partisanship dominated the process.  Republicans kept the seat vacant nearly all of 2016, despite President Obama’s nomination of Merrick Garland, who was denied a hearing entirely.  Upon Trump’s pick, Democrats responding by immediately preparing to filibuster in attempts to fight Gorsuch’s confirmation.  However, Republicans continued the drama by changing rules, implementing the “nuclear option,” and changing the 60-vote threshold, which was not looking promising, to a simple majority needed to confirm.

Now with Gorsuch sitting as (probably) the most conservative justice on the Court, the next vacancy on the Court becomes crucial.  While vacancies on the Court are far less common than they used to be, that also means the tenure of the sitting justices is longer than before.  During the mid-1900s, justices served an average of 12 years on the bench.   However, since the turn of the 21st century, justices are sitting far longer.  Retiree John Paul Stevens sat for 35 years on the court before retiring in 2010.

The potential for evolution in the law and its application to the nation over the next several decades needs to be paid close attention.  With justices sitting for 20-30 years at a time, the process of appointment needs to be strictly adhered to.  For a simple partisan majority in one given congressional term to be deciding the future of the nation is both exciting, and worrisome.

Ultimately, Gorsuch is a natural choice for any Republican.  He is likely to stand loyal to similar principles and even more likely to (mostly) reach the same conclusions as the party.   As a matter of “restoring the Court,” Gorsuch will elicit the same conservative legal theory that was lost when Justice Scalia passed last year.  Who will pick the next justice(s) remains unknown for now, however, the power of the Court seems to be largely be dictated by the party in the Oval and in congressional majority.  The very existence of the judiciary was designed apart from the other branches of government. Perhaps those Constitutional roots need to be viewed under the same originalist lens.

Taylor Elkins
About Taylor Elkins (8 Articles)
Taylor Elkins is a third year law student and serves as a Staff Writer for the Campbell Law Observer. Born and raised in Owasso, Oklahoma, Taylor went to Baylor University where she obtained a degree in biology and political science. During her time at Campbell, Taylor has worked at the North Carolina Department of Justice in the Criminal Appellate Division. She won Campbell's Richard Lord Intramural Moot Court Competition, and is now a member of Campbell's national moot court team. She is interested in patent law as well as appellate advocacy.