One of the major issues that dominated the 2016 presidential election campaign was that the next president was likely to pick at least three and as many as five Supreme Court justices over the next four to eight years due to the number of members of the court who are expected to retire shortly (as well as the vacancy left by deceased Supreme Court Justice Antonin Scalia).
Nominating Supreme Court justices is one of the weightiest responsibilities of all U.S. presidents, and it’s one that incoming President Donald Trump takes extremely seriously. Over the course of his extensive campaign, Trump came up with a short list of potential nominees for the court, which he revised in September of last year.
Trump has said that he would consult with the Federalist Society legal organization, as well as with Republican members of Congress and other advisors about appropriate selections for the court.
After some deliberation, President Trump has come up with a person to fill the still-vacant seat formerly held by Scalia that former President Obama wanted to occupy with Circuit Court of Appeals Justice Merrick Garland. As soon as Trump won the election, it was clear that the chances of Garland being confirmed by the Republican-led Senate became extremely remote.
For a brief time, there was talk among Democrats of the possibility to confirm Garland using an extraordinary procedure taking advantage of the gap between official sessions of Congress, but in the end, that opportunity was likely neither realistic nor politically acceptable.
Trump greatly respected Justice Scalia, as many of the statements he made during his campaign confirmed. “Justice Scalia was a remarkable person and a brilliant Supreme Court Justice. His career was defined by his reverence for the Constitution and his legacy of protecting Americans’ most cherished freedoms. He was a Justice who did not believe in legislating from the bench, and he is a person whom I held in the highest regard and will always greatly respect his intelligence and conviction to uphold the Constitution of our country,” Trump stated last year.
Scalia’s vote often was a conservative tiebreaker to a 4-4 deadlocked court where the number of other justices who were considered liberal matched the justices who were considered conservative. Currently, in Scalia’s absence, cases that result in deadlocked opinions defer to the decisions of lower courts, which is why confirming a new judge to replace the legendary justice is so important.
The person Trump has now selected to potentially fill the pronounced vacancy left by Scalia is Judge Neil Gorsuch of the 10th Circuit Court of Appeals in Colorado.
“When Justice Scalia passed away suddenly last February, I made a promise to the American people: If I were elected president, I would find the very best judge in the country for the Supreme Court,” said Trump at a White House briefing.
“I promised to select someone who respects our laws and is representative of our Constitution and who loves our Constitution and someone who will interpret them as written… Judge Gorsuch has outstanding legal skills, a brilliant mind, tremendous discipline, and has earned bipartisan support.”
On the latter point, Trump is absolutely correct; Gorsuch was confirmed unanimously by the Senate for the 10th Circuit Court. “Unanimous — can you believe that? Nowadays, with what’s going on?” Trump asked rhetorically. “Does that happen anymore? Does it happen? I think it’s going to happen. Maybe it will,” he said, hopeful of Gorsuch’s chances for quick confirmation to the nation’s highest court.
Trump called Gorsuch’s qualifications “beyond dispute,” stating, “I only hope that both Democrats and Republicans can come together for once for the good of the country.”
Trump is correct that Gorsuch is considered a “Constitutionalist” in the mold of Scalia — his model is to judge cases strictly by what’s in the Constitution and what isn’t, rather than trying to “interpret,” “extrapolate” or otherwise apply his opinion as some progressive or liberal justices have done and continue to do.
“Congress could have written the law differently than it did, and it is always free to rewrite the law when it wishes,” wrote Gorsuch in one of his many rulings. “But in our legal order, it is the role of the courts to apply the law as it is written, not some different law Congress might have written in the past or might write in the future.”
Carrie Severino, chief counsel of the Judicial Crisis Network, a conservative legal review group, said that Gorsuch’s “writing style has often been compared to Justice Scalia’s” and that the former “is someone who’s going to look at any question according to what the Constitution itself says, setting aside his own political views.”
In 2006, Gorsuch wrote an essay entitled “Liberals ‘n Lawsuits,” in which he said that progressives had used courts to advance “their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education.” Instead, Gorsuch argued, they should attempt to focus on “trying to win elections rather than lawsuits.”
Gorsuch’s own views on issues such as the sanctity of life may give conservatives hope on issues such as abortion. A line in a book Gorsuch wrote on euthanasia, reads “To act intentionally against life is to suggest that its value rests only on its transient instrumental usefulness for other ends.”
This was enough to concern Nancy Northup, the CEO and president of the pro-abortion Center for Reproductive Rights, who said, “Given president Trump’s promise to appoint a Supreme Court justice that would seek to overturn Roe v Wade, we need to know whether Judge Gorsuch would do just that. Our Constitution guarantees a woman’s right to safe, legal abortion. Any effort to gut those protections would harm the rights and health of women for generations to come.”
Of course, Northup is wrong about this “guarantee” because the Constitution doesn’t mention abortion at all, a view that Justice Scalia concurred with.
Gorsuch also has repeatedly validated claims of religious exemption in cases where laws might have otherwise compelled individuals to violate their own sacred beliefs. This is an active area of the law where future rulings seem likely.
In one famous case so far, Hobby Lobby Stores v Sebelius, Gorsuch ruled that the owner of a retail store didn’t need to comply with an Obamacare regulation mandating that employers provide health insurance coverage for oral contraceptives. In ruling on this case, Gorsuch cited the Religious Freedom Restoration Act, which he referred to as a “super-statute.”
Adding a feather to Gorsuch’s cap is that he’s just 49 years old, making him one of the youngest people in modern times to be nominated to the high court and giving him a high probability of serving for two or three decades into the future, ensuring that he will be a lasting conservative voice on the bench.
Unfortunately, Trump’s hope of bipartisan support for Gorsuch is probably too good to be true. With VICE News calling Gorsuch’s nomination “the most important thing Trump has done so far” and politicians such as Democratic Senator Chuck Schumer of New York hinting at filibustering Gorsuch’s confirmation, Republicans are likely to have a major battle on their hands soon.
In a statement, Schumer said, “The Senate must insist upon 60 votes for any Supreme Court nominee… The burden is on Judge Neil Gorsuch to prove himself to be within the legal mainstream and, in this new era, willing to vigorously defend the Constitution from abuses of the executive branch and protect the constitutionally enshrined rights of all Americans.”
It should be noted that Senate Republicans never filibustered any of former President Obama’s nominees for the Supreme Court, while the Democrats tried a filibuster of Justice Samuel Alito’s confirmation in 2006.
Of Gorsuch, progressive activist filmmaker and perennial crank Michael Moore tweeted to his 3.4 million followers, “This Supreme Court pick was Obama’s to make, and it was stolen by Republicans. Democrats had better block this and demand a nom we approve… Senate Dems, let’s be very clear: you will filibuster & block this SC nom, or we will find a true progressive and primary u in next election.”
However, Senate Democrats, particularly those in states that elected President Trump, were either skeptical or openly opposed to a filibuster. “I’m not going to filibuster anybody,” said Democratic Senator Joe Manchin of West Virginia. Democratic Senator Heidi Heitkamp of North Dakota said she couldn’t rule out supporting Gorsuch.
The New York Times warned that “Senate Democrats should be wary of stooping to the Republicans’ level, especially because any such effort is likely to prove futile since Republicans have the votes to simply eliminate the use of the filibuster against Supreme Court nominees.”
This means that Republicans could use a so-called “nuclear option” to allow for a simple 51-vote majority for Gorsuch’s confirmation rather than the normal 60 votes required. President Trump has indicated he would support this option being used for the judge’s eventual confirmation.
