Donald Trump’s Supreme Court nominee is a rock-ribbed conservative who’s difficult to oppose on jurisprudential grounds.

BY MARK JOSEPH STERN

Gorsuch, who currently serves on the U.S. Court of Appeals for the 10th Circuit, is difficult to object to on personal or jurisprudential grounds. Although he is a rock-ribbed conservative, he conveys his ideas fluently and courteously and is well-liked by his colleagues on the left and right. And though his rulings can be reactionary, he has never directly stated his opposition to hot-button legal issues like abortion and same-sex marriage.

Democrats may argue that Gorsuch is an illegitimate justice in a stolen seat, but the judge himself will not fit easily into the role of a villain. Whatever extreme positions he may hold will be concealed by his humble, articulate demeanor. It seems overwhelmingly likely that Gorsuch will soon sit on the Supreme Court of the United States.

Before his name emerged on Trump’s Supreme Court short list, Gorsuch was known for his opinions in two cases pertaining to the contraceptive mandate. When the 10th Circuit ruled in the Hobby Lobby case, Gorsuch wrote a concurring opinion explaining why religious corporations and their owners must be permitted to impose their beliefs on employees.

His broad vision of religious liberty includes the right of employers to deny workers access to contraception through their own insurance plans if employers believe contraception to be evil. Gorsuch also insisted that the government could not require religious nonprofits to fill out paperwork exempting them from the contraceptive mandate. Signing documents to opt out of the mandate, Gorsuch wrote, made nonprofits complicit in something they found “sinful.”

The contraceptive cases involved the Religious Freedom Restoration Act, a federal statute. But the philosophy of broad religious freedom that Gorsuch embraced in these opinions translates easily into the constitutional context. There is little doubt that Gorsuch would join the court’s conservatives in finding that the government cannot force pharmacies to provide Plan B, as this requirement would violate the Free Exercise Clause of the First Amendment. Moreover, it is difficult to imagine Gorsuch voting against the cake-makers and florists who proclaim a free exercise right to discriminate against same-sex couples. Such a position would flow logically from his stance in the contraceptive decisions.

Speaking of same-sex marriage: Although Gorsuch will surely duck the issue during confirmation hearings, he should be a solid vote against gay rights on the court. Gorsuch identifies himself as a textualist and an originalist in the tradition of Justice Antonin Scalia, meaning he interprets the Constitution based on its plain language and original public meaning. By and large, this philosophy spurns the notion of constitutionally protected LGBTQ rights, since the framers of the 14th Amendment did not have sexual minorities on their radar.

Abortion rights, too, are difficult to square with Gorsuch’s brand of originalism, as the constitutional right of bodily autonomy is derived from a broad reading of the word liberty, not an explicit textual command. The judge’s strange crusade to let Utah cut off funding to Planned Parenthood affiliates—which involved bending appellate procedure to its breaking point—may hint at a personal distaste for abortion. And Gorsuch has all but admitted in a book on physician-assisted suicide that he does not believe constitutional liberty encompasses the right for terminally ill patients to end their lives.

Can progressives find anything to like about Gorsuch’s jurisprudence? Only in the gaps between his stated positions. His stance on the First Amendment is mostly unknown, but his assertion that corporations can hold religious beliefs would suggest that he also thinks they have protected free speech rights. He agrees that the Second Amendment guarantees an individual right to bear arms, though his view of the scope of that right—does it apply outside the home? does it protect military-style weapons?—is uncertain. He has issued few death penalty decisions but divulged no qualms about its constitutionality and will probably resist efforts to limit its application.

Not all, however, is hopeless for Democrats. Libertarian-minded progressives may appreciate a notably Scalian streak in Gorsuch’s criminal decisions. Like Scalia, he sees the Fourth Amendment right to privacy as essentially property-based, providing strong protections for those in the home. Like Scalia, he can be skeptical of overreaching prosecutions, especially by the federal government, that could criminalize innocent conduct. (This view, while admirable, seems to emerge from a distaste for zealous prosecution of white-collar crime, such as corporate fraud.) And he appears interested in limiting qualified immunity, which protects government officials (including police) from lawsuits when they infringe upon constitutional rights.

Still, liberals are sure to be distressed by Gorsuch’s rather severe attitude toward an increasingly controversial area of the law: judicial deference to agency decisions. Under the current doctrine of “Chevron deference,” courts must defer to an executive agency’s interpretation of an ambiguous federal statute, so long as that interpretation is reasonable. The principle here is one of democratic accountability: Executive agencies are part of a political branch, and if the people do not like an agency’s interpretation, they can vote out the executive and demand change. Judges are independent, and if the people do not like a judge’s interpretation, they cannot do much to change it.

While Chevron was once endorsed by Scalia himself, conservatives have come to attack the doctrine in recent years, arguing that agencies exert too much legislative authority and corrupt the constitutional design of separation of powers. Gorsuch agrees with that stance. In a recent opinion, he all but called for the Supreme Court to overturn Chevron and let judges decide for themselves whether agency interpretations of ambiguous statutes are reasonable. Soon he may have the chance to cast a vote in favor of killing Chevron once and for all.

If confirmed, Gorsuch will restore the ideology of the Supreme Court to about where it was before Scalia died. He is vastly more conservative than Judge Merrick Garland, the Obama nominee whom Republicans blocked for nearly a year in the hope—now realized—that a Republican might appoint Scalia’s successor. The memory of this ghastly disregard of basic constitutional norms will hang over Gorsuch’s hearings and may even tarnish his legacy. His confirmation process will have the whiff of illegitimacy, which Democrats will attempt to use to keep him off the court.

But this strategy seems destined to fail,because it is so difficult to explain what is objectionable about Gorsuch himself. Yes, he is conservative, but he is not a rank partisan like Justice Samuel Alito, or a flame-throwing culture warrior like Scalia. He is a judge’s judge. And he is, in all likelihood, our next Supreme Court justice.

http://www.slate.com/articles/news_and_p..._a_villain.html

Gorsuch is perfect choice for Supreme Court, fulfills a Trump promise

BY JONATHAN TURLEY, 01/31/17

With the nomination of Neil Gorsuch to the United States Supreme Court, President Donald Trump not only fulfilled yet another campaign promise (to appoint a conservative to the Court) but showed Washington that he could find the strike zone in American politics.

Up until now Trump has unnerved many Republicans as a pitcher who seemed only to throw at the heads of batters. As bases filled up with badly botched press conferences and executive order rollouts, there was an audible rumbling among members of Congress about the course of the administration. This nomination will quiet some of that rumbling.

Gorsuch is unassailable in his experience, intellect, and demeanor. What is left is his conservative view of the law, but he is not the type of nominee who can be easily “Borked.” In other words, to return to baseball parlance, Gorsuch is a heater right down the middle.

With Gorsuch, conservatives get a nominee with the type of intellectual chops that could fill the void left by Scalia. At 49, he can serve for decades and could prove to be a rallying point for a new conservative Court if Trump replaces any of the three oldest justices: Ginsburg, Kennedy, and Breyer. All three will be in their 80s during Trump’s first term. While Gorsuch will not move the center of gravity on the court in a swap of a conservative for a conservative, any one of these justices could leave a transformed court in their wake if they leave during the Trump presidency.


Gorsuch is the closest you can get to conservative aristocracy in Washington. He is the son of Anne Gorsuch Burford, the first female head of the United States Environmental Protection Agency from 1981 to 1983. He spent time in Washington, D.C. and attended Georgetown Preparatory School. He studied at Columbia, Harvard and Oxford.

He went on to clerk for Judge David B. Sentelle on the United States Court of Appeals for the D.C. Circuit from 1991–1992, and then for United States Supreme Court Justices Byron White and Anthony Kennedy from 1993–1994. That connection as a former Kennedy clerk could be highly useful in securing the vote of the perennial swing voter of the court.
snip
Gorsuch, who is an Episcopalian and would be the only Protestant on the Court, is also very strong on religious freedom. Indeed, that may be an area that could become the very signature of his tenure on the Court. He voted in favor of Hobby Lobby and Little Sisters of the Poor in their challenge to the Affordable Care Act's contraceptive mandate. Gorsuch wrote that the government had transgressed upon "sincerely held religious beliefs."

Gorsuch could also prove highly influential on federalism. His writings reveal a more firm position on states rights than some members like Chief Justice John Roberts, who is still blamed for effectively gutting federalism in the first Obamacare ruling (by finding a violation but then upholding the law under a tax theory despite that violation). Indeed, Gorsuch could prove a driving force to resume the federalism revolution that we saw under the late Chief Justice William Rehnquist.

The most interesting aspect of Gorsuch’s jurisprudence is his view of agencies — a view that would produce an immediate change on the Court as a deviation from Scalia’s voting record. Gorsuch has criticized the decision (a view that I share) and has indicated that he would prefer a less deferential approach to agency decision-making.

Scalia upheld such deference, though I have heard that he privately expressed qualms about that aspect of his jurisprudence toward the end of his life. It is his position on federal agencies that I consider the most interesting in this nominee. Gorsuch has warned how federal agencies "concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers' design." In a line that could now become prophetic, Gorsuch declared "Maybe the time has come to face the behemoth."

http://thehill.com/blogs/pundits-blog/th...ulfills-a-trump

Gorsuch is perfect choice for Supreme Court, fulfills a Trump promise

BY JONATHAN TURLEY, 01/31/17

With the nomination of Neil Gorsuch to the United States Supreme Court, President Donald Trump not only fulfilled yet another campaign promise (to appoint a conservative to the Court) but showed Washington that he could find the strike zone in American politics.

Up until now Trump has unnerved many Republicans as a pitcher who seemed only to throw at the heads of batters. As bases filled up with badly botched press conferences and executive order rollouts, there was an audible rumbling among members of Congress about the course of the administration. This nomination will quiet some of that rumbling.

Gorsuch is unassailable in his experience, intellect, and demeanor. What is left is his conservative view of the law, but he is not the type of nominee who can be easily “Borked.” In other words, to return to baseball parlance, Gorsuch is a heater right down the middle.

With Gorsuch, conservatives get a nominee with the type of intellectual chops that could fill the void left by Scalia. At 49, he can serve for decades and could prove to be a rallying point for a new conservative Court if Trump replaces any of the three oldest justices: Ginsburg, Kennedy, and Breyer. All three will be in their 80s during Trump’s first term. While Gorsuch will not move the center of gravity on the court in a swap of a conservative for a conservative, any one of these justices could leave a transformed court in their wake if they leave during the Trump presidency.


Gorsuch is the closest you can get to conservative aristocracy in Washington. He is the son of Anne Gorsuch Burford, the first female head of the United States Environmental Protection Agency from 1981 to 1983. He spent time in Washington, D.C. and attended Georgetown Preparatory School. He studied at Columbia, Harvard and Oxford.

He went on to clerk for Judge David B. Sentelle on the United States Court of Appeals for the D.C. Circuit from 1991–1992, and then for United States Supreme Court Justices Byron White and Anthony Kennedy from 1993–1994. That connection as a former Kennedy clerk could be highly useful in securing the vote of the perennial swing voter of the court.
snip
Gorsuch, who is an Episcopalian and would be the only Protestant on the Court, is also very strong on religious freedom. Indeed, that may be an area that could become the very signature of his tenure on the Court. He voted in favor of Hobby Lobby and Little Sisters of the Poor in their challenge to the Affordable Care Act's contraceptive mandate. Gorsuch wrote that the government had transgressed upon "sincerely held religious beliefs."

Gorsuch could also prove highly influential on federalism. His writings reveal a more firm position on states rights than some members like Chief Justice John Roberts, who is still blamed for effectively gutting federalism in the first Obamacare ruling (by finding a violation but then upholding the law under a tax theory despite that violation). Indeed, Gorsuch could prove a driving force to resume the federalism revolution that we saw under the late Chief Justice William Rehnquist.

The most interesting aspect of Gorsuch’s jurisprudence is his view of agencies — a view that would produce an immediate change on the Court as a deviation from Scalia’s voting record. Gorsuch has criticized the decision (a view that I share) and has indicated that he would prefer a less deferential approach to agency decision-making.

Scalia upheld such deference, though I have heard that he privately expressed qualms about that aspect of his jurisprudence toward the end of his life. It is his position on federal agencies that I consider the most interesting in this nominee. Gorsuch has warned how federal agencies "concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers' design." In a line that could now become prophetic, Gorsuch declared "Maybe the time has come to face the behemoth."

http://thehill.com/blogs/pundits-blog/th...ulfills-a-trump

Neil Gorsuch Is Nothing Like Donald Trump -- Slate

He's principled, dexterous, and eloquent.

By Mark Joseph Stern

Neil Gorsuch is strikingly different from the man who nominated him to the United States Supreme Court. Where President Donald Trump is doltish and ignorant, Gorsuch is witty and astute. Where Trump is volatile and distractible, Gorsuch is principled and dexterous. And, perhaps most glaringly, where Trump is rambling and incoherent, Gorsuch is eloquent and compelling—a strikingly good writer who can make the dustiest doctrine seem lively, and the most unpalatable position seem persuasive.

Consider the opening paragraph of Gorsuch’s slick appellate concurring opinion in Hobby Lobby, which often reads more like a homily than a judicial opinion. Gorsuch wanted to explain why a religious corporation should not be required to let its employees access contraception through their health insurance plans. It is not obvious why corporations (which are not real people) should have the right to deny contraception to female employees (who are real people). So Gorsuch stripped away the veneer of the corporation itself to paint a sentimental picture of the human conflict behind the case—the Green family’s belief that some contraception constitutes abortion:

All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others. For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability. The Green family members are among those who seek guidance from their faith on these questions. Understanding that is the key to understanding this case.

Unfortunately for the Greens, their religious beliefs did not exactly align with science: The contraceptives they opposed, like IUDs, did not really terminate pregnancies. But Gorsuch argued that this fact did not matter:

No doubt, the Greens’ religious convictions are contestable. Some may even find the Greens’ beliefs offensive. But no one disputes that they are sincerely held religious beliefs. This isn’t the case, say, of a wily businessman seeking to use an insincere claim of faith as cover to avoid a financially burdensome regulation. And to know this much is to know the terms of the Religious Freedom Restoration Act apply.

Then Gorsuch pulled a neat trick—completely flipping the politics of the case. Hobby Lobby wasn’t a villain imposing its beliefs on nonbelievers, Gorsuch implied; it was a maligned religious minority seeking protection from the law:

The Act doesn’t just apply to protect popular religious beliefs: it does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve as a refuge of religious tolerance.

Suddenly, a large Christian corporation wasn’t imposing its reactionary views on its employees. It was merely begging for “religious tolerance” from a cruel federal government.

snip

http://www.slate.com/articles/news_and_p...nald_trump.html

Quote: ThirstyMan wrote in post #4

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Neil Gorsuch Is Nothing Like Donald Trump -- Slate
He's principled, dexterous, and eloquent.
By Mark Joseph Stern

Unfortunately for the Greens, their religious beliefs did not exactly align with science: The contraceptives they opposed, like IUDs, did not really terminate pregnancies. But Gorsuch argued that this fact did not matter:

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Quote: Cincinnatus wrote in post #6

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Excellent research, TM. Thanks for adding.

Now we will have to see how the Democrats handle this nomination of a very qualified and very decent man. Can they, or will they, try to Bork him?

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Smart guy. He hunts with Antonin Scalia, not Dick Cheney