Scalia’s views mixed with Kennedy’s style: Meet Neil Gorsuch, Trump’s pick for the Supreme Court
Federal Judge Neil Gorsuch is President Donald Trump’s nominee to fill the vacancy on the Supreme Court left by Antonin Scalia’s death.
Judge Neil M. Gorsuch was resting midway down a Colorado ski slope last year when his cellphone rang with the news that Supreme Court Justice Antonin Scalia had died.
“I immediately lost what breath I had left,” Gorsuch recalled in an April speech, “and I am not embarrassed to admit that I couldn’t see the rest of the way down the mountain for the tears.”
Now, as President Trump’s pick to replace Scalia on the high court, Gorsuch is seen by many on the right as a fitting replacement for the iconic jurist that Gorsuch considered a “lion of the law.”
Like Scalia, Gorsuch, 49, who serves on the 10th Circuit Court of Appeals in Denver, is a well-respected conservative who believes judges should decide cases based on the law as it was understood when passed, not on how they think it should be. He’s a clear, impassioned writer, albeit without Scalia’s flair for biting sarcasm.
But Gorsuch also evokes the qualities of Justice Anthony M. Kennedy, for whom Gorsuch worked as a law clerk. (If confirmed, Gorsuch would join three justices who previously clerked on the high court, but he would be the first ever to serve alongside the justice he or she worked for.)
Like Kennedy, 80, Gorsuch is a Westerner with a polite, congenial manner who at times has won praise from liberals. He may be more conservative than Kennedy when it comes to expanding individual rights, but he seems to lack Scalia’s fervor for overturning liberal precedents from decades past.
Which way Gorsuch skews could be pivotal for the future of the court. Conservatives clearly hope he’ll be more like Scalia than Kennedy, a centrist swing vote who has often joined liberals on issues such as gay marriage and abortion. Some conservatives have even expressed hope that Gorsuch’s personal history with Kennedy might enable him to draw the Reagan-appointee back toward the right.
In his April speech, Gorsuch described Scalia’s approach to judging as his model. “Perhaps the great project of Justice Scalia’s career was to remind us of the differences between judges and legislators,” he said. Lawmakers may “appeal to their own moral convictions” and to claims of “social utility” to reshape laws for the future, he said. “Judges should do none of these things in a democratic society. Judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to the 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.”
His approach to judging won him admirers in conservative circles. He was among the 21 judges whom Trump cited during the campaign as potential Supreme Court nominees. And since the November election, a small team of White House lawyers has been reading the opinions of prominent conservative judges, and there, Gorsuch stood out. His opinions do not include Scalia-like jabs, but he carefully explains the law and how it should be understood.
“Neil Gorsuch is an impressive, wide-ranging legal intellectual and the one of most respected originalists of his generation,” said Jeffrey Rosen, president of the National Constitution Center in Philadelphia. “His opinions show a commitment to the history and text of the Constitution, regardless of where the results lead.”
Former 10th Circuit Chief Judge Robert Henry, an Oklahoma Democrat appointed by President Bill Clinton, described him as “a highly principled conservative jurist who is a marvelous writer. His judicial temperament is superb. I think he is an outstanding nominee.”
In 2006, when President George W. Bush nominated him for the appeals court, the Senate approved him on a voice vote. That easy confirmation no doubt played a major role in his nomination on Tuesday,
Gorsuch’s views on abortion — always a closely watched issue in high court confirmations — are not clear. He wrote about the importance of life in his book, “The Future of Assisted Suicide and Euthanasia,” which argued against laws permitting people to have help in ending their lives.
He concluded in favor of “retaining the laws banning assisted suicide and euthanasia… based on the idea that all human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong.” Some anti-abortion advocates have taken comfort in that language, though others remain skeptical, noting his use of the word “fetus” in some writings rather than “unborn child.”
If Gorsuch replaces Scalia, a fierce critic of Roe vs. Wade and a reliable conservative vote, it would likely preserve the court’s previous ideological balance, with Kennedy holding the deciding vote in the most divisive cases.
The real tipping point on the court could come if Kennedy or Justices Ruth Bader Ginsburg and Stephen G. Breyer depart, giving conservatives, including the court’s conservatives, an opportunity to overturn the abortion right and other liberal precedents.
Gorsuch has roots in both his native Colorado and in Washington, D.C., where he lived as a high school student after his mother, Anne Gorsuch Burford, was chosen in 1981 to head the Environmental Protection Agency under President Reagan. She ran into trouble with environmentalists and congressional Democrats and was forced to step down in 1983.
He is an Episcopalian and would be the only Protestant on the current court. Five of the justices are Catholic and three are Jewish.
Gorsuch’s Ivy League academic resume is the most traditional of the three candidates who made Trump’s short list. He graduated from Georgetown Prep in Bethesda, Md., and then earned degrees from Columbia University, Harvard Law School and Oxford University, where he met his wife. They have two daughters.
Gorsuch spent nearly a decade working as a lawyer in Washington, where he won a huge anti-trust verdict.
“He is thoughtful and principled. He is one of our country’s finest federal appellate judges,” said Washington attorney David Frederick, a former law partner who describes himself as a Democrat. “In the years we practiced law together, he was a wonderful colleague, and I would expect the justices to appreciate his affability and willingness to consider carefully a range of viewpoints.”
While he has regularly taken the conservative side in many cases, he has also written strong opinions on religious liberty, executive power and due process of law that might well have been used by civil libertarians who rushed to court this weekend to challenge the temporary travel ban issued by Trump.
For example, in the objections from some Christian employers over the Obama administration’s so-called “contraceptive mandate” under the Affordable Care Act, Gorsuch sided with the employers, concluding they had a religious-liberty right exempting them from the mandate.
But he also emphasized the importance of protecting “unpopular” religions. The federal law protecting religious liberty “doesn’t just apply to protect popular religious beliefs,” he wrote. “It does perhaps its most important work in protecting unpopular beliefs, vindicating this nation’s long-held aspiration to serve as a refuge of religious tolerance,” he wrote in 2013.
In August, he wrote an opinion for the 10th Circuit reversing federal immigration officials and ruling for an immigrant living in Oklahoma who was seeking lawful status. While his case was pending, the Bureau of Immigration Appeals announced a new rule that would require the man to leave the country for 10 years.
Gorsuch said it was unfair to change the law and apply it retroactively to immigrants. “The due process concerns are obvious: When Mr. [Hugo] Gutierrez-Brizuela made his choice, he had no notice of the law that the BIA [Bureau of Immigration Appeals] now seeks to apply,” he wrote. “And equal protection problems are obvious too: If the agency were free to change the law retroactively based on shifting political winds, it could use that power to punish politically disfavored groups.”
He concluded by saying it was time to scrap the so-called “Chevron doctrine,” which calls for judges to defer to executive agencies. Instead, judges should “fulfill their duty to exercise their independent judgment about what the law is,” he wrote in Gutierrez-Brizuela vs. Lynch.
His skepticism about deferring to executive agencies won him praise from conservatives who objected to Obama administration regulations. But it may pose problems for Trump and his administration when it relies on executive actions to enforce new rules.
University of Notre Dame law professor John Copeland Nagle highlighted the “irony” of nominating Gorsuch. “Who would have guessed that President Trump’s most important decision in his first weeks in office would be to limit his own power?,” he said. He called Gorsuch’s opinion in the immigration case “the most encouraging sign for the future. President Trump, in other words, has chosen someone committed to enforcing the constitutional separation of powers, even if that means Trump gets less power.”
Gorsuch’s best-known opinions have focused on religion and its role in public life. He dissented when the 10th Circuit struck down a Utah law that allowed for “memorial crosses donated by the Utah Highway Patrol Association to commemorate fallen troopers.”
In 2013, the 10th Circuit, including Gorsuch, ruled in favor of the Green family, owners of the Hobby Lobby chain of craft stores, who sought a religious exemption from paying for drugs or devices that they believed could destroy a fertilized human egg. Gorsuch wrote a concurring opinion explaining the decision.
“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,” he wrote. “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…. No one disputes that the Greens’ religion teaches that the use of such drugs and devices is gravely wrong,” and a government requirement for them to supply them “itself violates their faith, representing a degree of complicity their religion disallows.”
A year later, the Supreme Court came to the same conclusion in a 5-4 decision.
On Twitter: DavidGSavage
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