Trump tweeted on Wednesday that he’ll announce his pick next Thursday, and later told Fox News’ Sean Hannity that he’s mostly finished deciding.
“I have made my decision pretty much in my mind, yes. That’s subject to change at the last moment, but I think this will be a great choice,” Trump said.
Media reports have indicated that Trump has narrowed his list to three candidates: Gorsuch, William Pryor, and Thomas Michael Hardiman.
Trump said during his campaign that he would seek to “appoint judges very much in the mold of Justice Scalia” — a characteristic which Gorsuch embodies in particular.
In a speech to Case Western Reserve University’s law school shortly after Scalia’s death, Gorsuch praised the justice for his unyielding textualism — interpreting a law according to its plain text, rather than considering the intent of the lawmakers or the consequences of its implementation.
Gorsuch said Scalia’s greatest achievement was perhaps his emphasis on the differences between legislators, who he said use the law according to their own morals and ambitions for society’s future, and judges, who “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 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,” Gorsuch said during the speech.
Scalia’s method of statutory interpretation was done “correctly” and was undoubtedly a “success,” according to Gorsuch, who quoted Scalia as saying, “If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”
Similarly, Gorsuch also supports originalism, meaning he seeks to interpret the law according to the original meaning of the Constitution as it was written. During cases, Gorsuch would frequently ask his clerks to scour historical sources whenever a constitutional issue arose, David Feder, one of his former clerks, wrote in a blog post for the Yale Journal on Regulation.
“‘We need to get this right,’ was the memo — and right meant ‘as originally understood,’” Feder said.
‘Conservatives will love him’
Gorsuch, who at 49 would be the youngest justice currently sitting on the Supreme Court bench, comes with a prestigious academic and legal background, as well as staunchly conservative credentials.
He graduated from Harvard Law School, and clerked for Supreme Court justices Byron White and Anthony Kennedy. A Denver native, Gorsuch was appointed to the federal appeals court for the 10th circuit by President George W. Bush in 2006, and had worked in the administration’s Department of Justice prior to his appointment.
Like Scalia, Gorsuch has become known for his writing style, which is often imbibed with his wit and personality. But, in a departure from the famously combative justice, Gorsuch has a reputation for projecting an easygoing demeanor — a trait that could work in his favor during the hearings in which Democrats have vowed to fight “tooth and nail.”
“I think the conservatives will love him and the liberals will find very little to fault,” Mark Hansen, a former partner of Gorsuch’s at Kellogg Huber Hansen, told CNN. “He’s an affable, collegial, unpretentious man with a good sense of humor.”
Gorsuch is also known for his votes and opinions in favor of religious liberty, in perhaps his notable case siding with claimants Hobby Lobby and Little Sisters of the Poor, who argued their religious beliefs were violated by the Affordable Care Act’s contraceptive mandate.
The government must not force those with “sincerely held religious beliefs” to be complicit in “conduct their religion teaches them to be gravely wrong,” Gorsuch wrote in his opinion.
The case went to the Supreme Court in 2014, which came to the same decision as Gorsuch in a 5-4 vote.
In criminal law, too, Gorsuch applies a textualist interpretation and often sides with defendants over prosecutors in an effort to avoid criminalizing conduct that could potentially be innocent.
In one 2013 case, for instance, Gorsuch ruled that a police officer in Lafayette, Colorado, had not used excessive force when he Tasered 22-year-old Ryan Wilson, who died from the incident. Gorsuch’s decision upheld a lower court’s ruling that the officer had qualified immunity, the Denver Post reported.
According to Gorsuch, all officers were protected under broadly applied qualified immunity laws, with the exception of “the plainly incompetent or those who knowingly violate the law.”
Gorsuch has also been a staunch opponent of what he calls “executive overreach,” a position that could appease many Republicans who criticized the Obama administration’s use of executive orders to cut through congressional gridlock, while also reassuring Democrats worried about the ramifications of Trump’s executive orders.
Executive bureaucracies, according to Gorsuch, “concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.”
In keeping with Republican tradition, Gorsuch leans in favor of state power over federal power — an approach that can be challenging in civil rights cases that frequently revolve around the power of “rogue” state laws, University of Denver law professor Justin Marceau told the Denver Post.
“We would see a judge who, while perhaps not as combative in personal style as Justice Scalia, is perhaps his intellectual equal,” Marceau said, “and almost certainly his equal on conservative jurisprudential approaches to criminal justice and social justice issues that are bound to keep coming up in the country.”
|10th U.S. Circuit Court of Appeals via Associated Press|
Neil Gorsuch is a judge in the “Scalia mold,” and his liberal students love him
A judge who sits on the 10th Circuit Court of Appeals in Denver and makes his home in liberal Boulder is considered a top contender for President Donald Trump’s Supreme Court pick.
Neil Gorsuch, just 49, is described as a strict originalist, as well as a clear writer whose opinions are easy to understand. He sided with Hobby Lobby when that company cited religious reasons for excluding certain types of birth control from the employee insurance package, and he has challenged the authority of regulatory agencies to decide what the law means. Gorsuch opposes assisted suicide and euthanasia.
During his confirmation hearings for the Court of Appeals, though, he did not want to be “pigeon-holed.” (Who does, though?)
“I resist pigeon holes. I think those are not terribly helpful, pigeon-holing someone as having this philosophy or that philosophy,” he said, according to an online transcript. “People do unexpected things and pigeon holes ignore gray areas in the law, of which there are a great many.”
President Donald Trump is expected to announce his choice Tuesday evening. In less contentious times, Gorsuch might be a shoe-in. There is no question about his qualifications; when he was appointed to the appellate court by President George W. Bush, he was confirmed with a unanimous voice vote.
So who is Neil Gorsuch?
Alex Burness at the Daily Camera spoke to attorneys and students in Boulder and found they all had great respect for Gorsuch. They used words like “brilliant,” “thoughtful” and “charming.”
Boulder County District Attorney Stan Garnett, a Democrat, described Gorsuch as “very ethical” and “very smart.”
And CU law student and liberal activist Jordan Henry said: “I found him to be a person of character and quality, intellectually curious and willing to debate all sides. I think he’s dedicated to the truth, to justice, to the justice system.
“I may not always agree with him but I do think he gives all voices a fair hearing, and that’s all you can ask of a judge.”
Gorsuch is an avid skier and fly fisherman, and he also rides his horses. He’s married with two daughters. His mother was Anne Gorsuch, who ran the EPA under President Ronald Reagan.
Colleagues described him as charismatic and down-to-earth, without the abrasiveness that characterized Scalia.
Newsweek highlighted some of Gorsuch’s rulings on key cases. If you go over there, you can see how he compares to the other people on the short list.
Gorsuch has questioned the “Chevron doctrine,” under which courts generally defer to a regulatory agency’s interpretation of the language of a law. In a concurring opinion he wrote in August 2016, for Gutierrez-Brizuela v. Lynch, he called the doctrine the “elephant in the room” and suggested allowing “executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.”
According to SCOTUSBlog, Gorsuch’s take on the Chevron doctrine distinguishes him from Scalia more than his readings on other issues. And like Scalia, he can sometimes be a friend to criminal defendants. In one ruling involving a felon in knowing possession of a handgun, he questioned the conviction not on the basis of whether the man knew he had a gun — obviously he did — but whether he knew he was a felon.
From the right, Tom Fitton, president of Judicial Watch, described Gorsuch as fitting the “Scalia mold.”
“I think conservatives would consider him to be an exciting pick,” he told Newsweek. “I think it’s fair to say he’s a leader in terms of conservative jurisprudence and I think he quickly would become a strong voice on the court for his constitutional approach to decision making.”
From the left, well, Gorsuch would probably make a lot of rulings liberals disagree with.
Marge Baker, executive vice president of People for the American Way, told Newsweek that Gorsuch’s record “clearly shows that he puts his own ideological views above the Constitution and laws.”
“His decisions routinely support the interests of corporations over those of everyday Americans,” she said. “If appointed and confirmed to our nation’s highest bench, he’d seriously endanger civil rights, women’s rights, and workers’ rights.”