The two leading contenders for the vacancy created by the death last February of Justice Antonin Scalia are a study in contrasts.
One, Judge William H. Pryor Jr. of the federal appeals court in Atlanta, is a former Alabama attorney general, a graduate of Tulane’s law school and an outspoken opponent of abortion and gay rights.
The other, Judge Neil M. Gorsuch of the federal appeals court in Denver, is a graduate of Columbia, Harvard and Oxford University, a former clerk to two Supreme Court justices and a former Justice Department official.
The two were described as among the leading contenders by an administration official who spoke on the condition of anonymity to discuss internal White House planning.
Both men are conservatives, but Judge Gorsuch’s credentials, erudition and more muted stances could smooth his confirmation chances.
Democrats remain bitter over the refusal of Republicans to consider President Barack Obama’s nomination of Judge Merrick B. Garland, and they say they will mount a furious opposition to any candidate out of the legal mainstream. Senator Chuck Schumer of New York, the minority leader, has said Democrats were prepared to try to keep Justice Scalia’s seat open indefinitely if Mr. Trump proposes such a nominee.
Judge Gorsuch, 49, appointed to the appeals court by President George W. Bush in 2006, was not initially thought to be a top contender. His name did not appear on the first list of 11 potential nominees circulated by the Trump campaign in May, though he did make a second list of an additional 10 names issued in September.
Judge Gorsuch’s best-known votes came in decisions concerning regulations under the Affordable Care Act requiring employers to provide free contraception coverage. He voted to accommodate religious objections to the regulations, a position largely upheld by the Supreme Court.
In general, Judge Gorsuch’s approach to the law mirrors that of Justice Scalia. He is an originalist, meaning he tries to interpret the Constitution consistently with the understanding of those who drafted and adopted it. And he is a textualist, focusing on the language of statutes rather than what lawmakers have had to say about them.
Judge John L. Kane, who was appointed to the Federal District Court in Denver by President Jimmy Carter, said Judge Gorsuch was admired by his fellow judges. “He writes opinions in a unique style that has more verve and vitality than any other judges I study on a regular basis,” Judge Kane said.
Judge Kane said Judge Gorsuch had voted both to affirm and to reverse his decisions. “In each instance, I have felt I was clearly understood and properly informed,” Judge Kane said. “I think Judge Gorsuch listens well and decides justly. His dissents are instructive rather than vitriolic. In sum, I think he is an excellent judicial craftsman.”
Judge Pryor is a protégé of Senator Jeff Sessions, Mr. Trump’s nominee for attorney general. When Mr. Sessions was Alabama’s attorney general, Mr. Pryor served as his deputy, succeeding him when he joined the Senate.
Representing Alabama, Mr. Pryor in 2003 filed a supporting brief urging the Supreme Court to uphold a Texas law that made gay sex a crime. The position of the gay men challenging the law, Mr. Pryor wrote, “must logically extend to activities like prostitution, adultery, necrophilia, bestiality, possession of child pornography, and even incest and pedophilia.”
“The states should not be required to accept, as a matter of constitutional doctrine, that homosexual activity is harmless and does not expose both the individual and the public to deleterious spiritual and physical consequences,” Mr. Pryor wrote in the brief.
At his 2003 confirmation hearing, he stood by an earlier statement that Roe v. Wade, the 1973 Supreme Court decision that established a constitutional right to abortion, was “the worst abomination of constitutional law in our history.”
“I believe that not only is the case unsupported by the text and structure of the Constitution, but it had led to a morally wrong result,” Mr. Pryor told the Senate Judiciary Committee. “It has led to the slaughter of millions of innocent unborn children.”
Mr. Pryor, 54, is no stranger to confirmation fights. He joined the appeals court in 2004, having been temporarily appointed by Mr. Bush while the Senate was in a brief recess. He was eventually confirmed as part of a bipartisan deal. He has mostly voted for conservative results, but some critics on the right have expressed unease with his vote in favor of a transgender woman in a 2011 decision.
Mr. Pryor has many supporters among conservatives, who say that he is a distinguished judge who applies the law impartially.
“His record clearly indicates that he applies the law in an evenhanded fashion, putting his personal beliefs aside,” John G. Malcolm of the Heritage Foundation said. “He is a man of great integrity committed to fidelity, to the Constitution and the rule of law.”
|Judge William H. Pryor Jr. of the federal appeals court in Atlanta in November. He is a former Alabama attorney general, a graduate of Tulane’s law school and an outspoken opponent of abortion and gay rights. Credit Cliff Owen/Associated Press|
Denver’s Neil Gorsuch is among Donald Trump’s top choices for Supreme Court justice
WASHINGTON — President Donald Trump has narrowed his choice to fill the Supreme Court vacancy to three judges — one of them a Denver appeals judge, according to a source — and said he expects to make his decision in the coming days.
A person familiar with the selection process said that the three judges, all white men who sit on federal appeals courts, were on the list of 21 potential high court picks Trump announced during the presidential campaign.
The leading contenders — who all have met with Trump — are Denver native Neil Gorsuch, William Pryor and Thomas Hardiman, the person said, speaking anonymously because he was not authorized to speak publicly about internal decisions.
Pryor, 54, is an Alabama-based judge on the 11th U.S. Circuit Court of Appeals. Gorsuch, 49, is on the Denver-based 10th U.S. Circuit Court of Appeals and Hardiman, 51, sits on the 3rd U.S. Circuit Court of Appeals in Pittsburgh. All three were nominated by President George W. Bush for their current posts.
Trump has promised to seek someone in the mold of conservative icon Antonin Scalia, who died nearly a year ago after serving on the Supreme Court for more than 29 years. Senate Republicans prevented President Barack Obama from filling the seat, a political gamble that paid off when Trump was elected.
Trump was scheduled to meet later Tuesday with Senate Majority Leader Mitch McConnell, Senate Democratic Leader Chuck Schumer, Sen. Chuck Grassley and Sen. Dianne Feinstein to discuss the court vacancy. McConnell wrote on Twitter, “I appreciate his soliciting our advice.” Trump said he plans to announce his choice next week.
McConnell led the Senate in refusing to even to consider Obama’s nomination of Judge Merrick Garland to take Scalia’s seat, announcing on the night that Scalia died that the vacancy should be filled not by Obama, but by the next president.
Of the three leading candidates, only Pryor faced significant opposition to his appellate nomination. Senate Democrats refused to allow a vote on Pryor’s nomination, leading Bush initially to give Pryor a temporary recess appointment. In 2005, the Senate confirmed him 53-45, after senators reached an agreement to curtail delaying tactics for appellate judgeships.
Gorsuch was approved by a voice vote in 2006. Schumer and Feinstein were among the 95 senators who voted for Hardiman’s confirmation in 2007. Hardiman is a colleague of Trump’s sister, Judge Maryanne Trump Barry.
Trump praised the candidates on his roster after signing several executive actions on Tuesday in the Oval Office. “We have outstanding candidates,” the president said. “And we’ll pick a truly great Supreme Court justice.”
He said he would be making a decision this week, and announce it next week. White House spokeswoman Stephanie Grisham would not say whether Trump had narrowed his list to three names, including Gorsuch.
“Nothing we can confirm at this time,” she wrote in a response to emailed questions.
Gorsuch attended Columbia University, Harvard Law, Oxford University for a doctorate in legal philosophy, then clerked for two U.S. Supreme Court justices.
After 10 years in private practice with a Washington law firm, he served a year as deputy associate attorney general with the U.S. Department of Justice. George W. Bush nominated Gorsuch for the Denver-based appeals court spot left by David Ebel.
For conservatives, Gorsuch meets conservative standards as an originalist and a textualist — someone who interprets the Constitution and statutes as they were originally written.
He has given voice to concerns about “executive overreach” — a frequent complaint aimed at the Obama administration’s use of executive orders to achieve goals that ran into legislative gridlock.
In December, David Lat, managing editor of the legal website Above the Law, told The Denver Post that Gorsuch’s stellar academic pedigree and national connections, but also to his relatively young age, as reasons to consider him among the favorites for the nomination.
Two other Colorado justices were on Trump’s original list of 21 potential nominees: Colorado Supreme Court Justice Allison Eid and Tim Tymkovich chief judge for the Tenth Circuit court of appeals.
Colorado-based judge, Neil Gorsuch, considered a top contender on Trump's Supreme Court list
WASHINGTON (CNN) -- A Colorado-based judge, Neil Gorsuch, is among President Donald Trump's top picks for the Supreme Court opening.
Trump himself said on the campaign trail that he would look at judges William Pryor and Diane Sykes as top contenders, and has touted his list of 20 possible choices from conservative legal circles. Sources close to the search say as things stand now, Gorsuch has emerged on top of the list as well as Judge Thomas Hardiman.
"I think in my mind I know who it is," Trump said during a luncheon at his hotel Thursday with Republicans, according to cell phone video of the event obtained by CNN. "I think you're going to be very, very excited."
In recent weeks, the search has intensified as lawyers and outside groups have joined the effort pouring through legal briefs, opinions, articles and congressional transcripts.
The decision will all come down to a calculation by top staff weighing the judge and the current court against a series of factors including his or her record, age and background.
A look at four of those on the top of the list reveal arguments that Trump will weigh both for and against.
Gorsuch sits on the 10th Circuit Court of Appeals based in Denver. He's never had the occasion to write an opinion addressing Roe v Wade.
That might disappoint some who want to make sure that he wouldn't surprise them on the issue.
But he's become a favored candidate in part because of his opinions on religious liberty including one he joined siding with closely held corporations who believed that the so-called contraceptive mandate of Obamacare violated their religious beliefs.
And on more than one occasion, he's aligned himself with Scalia. In the weeks after Scalia's death last year, Gorsuch gave a talk emphasizing that "the great project of Justice Scalia's career was to remind us of the differences between judges and legislators."
Trump might conclude that Gorsuch could sidestep a major fight in Congress.
Or not. Liberals are still seething mad that Republican senators failed to hold hearings for former President Barack Obama's nominee, Merrick Garland, and could take it out on Gorsuch, or anyone else Trump picks.
"Those of us who believe that Merrick Garland was improperly denied a vote and also recognize that the majority of the American people voted for Hillary Clinton are going to refuse a nominee who moves the court in such a a right wing direction," said Caroline Fredrickson of the American Constitution Society. It is unclear if progressives would accept any of Trump's nominees that have been a part of his current list.
Trump knows, for example, that if he picks Pryor, he is asking for a fight with Senate Democrats. Pryor sits on the 11th Circuit Court of Appeals and he is a dream candidate for many conservatives. He's called Roe v. Wade, the Supreme Court ruling legalizing abortion, an "abomination." He's a committed member of the Federalist Society, and in the mold of the late Justice Antonin Scalia, believes that the Constitution should be interpreted based on its original public meaning.
"I am a conservative, and I believe in the strict separation of governmental powers," Pryor wrote in 1997 when he was attorney general of Alabama. "Courts should not resolve political problems."
Pryor has faced the Senate gauntlet before.
In 2004, Democrats blocked his confirmation to the appellate court, and it was only in June 2005 that he was officially confirmed by a vote of 53-45.
But despite Pryor's record, some conservatives have questioned an opinion he joined that they perceive as expanding transgender rights.
Sykes hails from Wisconsin, a critical state during the last election and home to Trump's Chief of Staff Reince Priebus.
A former journalist, she flexed her interviewing skills in 2013 by sitting down with Justice Clarence Thomas for a talk to discuss his jurisprudence. She won over the room during the event -- hosted by the Federalist Society -- for showcasing Thomas' personality in an interview that at times brought down the house.
Just last week Sykes issued an opinion striking three provisions of Chicago regulations meant to govern shooting ranges. It was a follow up opinion from one she penned in 2011 that enjoined Chicago's ban on firing ranges within city limits. Both opinions are peppered with references to Scalia's landmark Second Amendment opinion, District of Columbia v. Heller.
Sykes would bring another woman to the Court. She would be the fifth woman ever named, the second from a Republican candidate. But Trump could calculate that it would make more sense to save her for the seat of Justice Ruth Bader Ginsburg should she ever retire.
Sykes is also 59 years old, and some court watchers think that Trump might prefer someone younger.
Hardiman of the 3rd Circuit Court of Appeals, for example, is almost a decade younger at 51 and offers Trump a compelling personal story.
Hardiman hails from a blue collar family in Massachusetts and was the first in his family to graduate from college, driving a cab to help pay his bills. Hardiman is not product of the Ivy League having attended Notre Dame and Georgetown.
Those close to him think that Trump might appreciate Hardiman's dry wit and the fact that while he is persuasive he doesn't take over a room.
Like Sykes, Hardiman referred to Heller several times in a dissent he penned in 2013 in a case concerning gun licenses.
The opposition of Hardiman has been relatively muted and Ian Millhiser of the progressive Think Progress has written that he is "one of the more ideologically enigmatic names on Trump's list." Such a sentiment could scare away conservatives who do not want a dark horse candidate.
Conservatives believe that George H.W. Bush missed an opportunity to shape the court when he named a relative unknown -- David Souter -- to the bench. Rather than helping create a conservative legacy, Souter became a reliable vote for the left. Some might question whether Hardiman has a robust enough record to scour and get Republicans excited.
If Trump needed a personal reference, however, he'd only need to reach out to his sister, Judge Maryanne Trump Barry, who sits on the same appellate bench.