Later this week, the Senate is expected to vote on the confirmation of Tenth Circuit Court of Appeals Judge Neil Gorsuch to the Supreme Court. Judge Gorsuch was nominated by President Donald Trump on January 31, 2017.
Judge Gorsuch is a Supreme Court nominee very much in the mold of the late Justice Antonin Scalia who will, based on his record, interpret the text of the U.S. Constitution as originally written and honor the separation of powers laid out in the Constitution. One recent study singled out Gorsuch as one of the top judges whose approach to interpreting the law was closest to that of Justice Scalia's approach. Gorsuch ranked second out of 15 judges in "Scalia-ness."
Gorsuch is a "judge's judge" who maintains a record of deciding cases based on the law rather than political or personal opinions, or a willingness to create unwritten rights supposedly hidden between the lines. He once wrote: "In our legal order it is for Congress and not the courts to write new laws. It is the role of judges to apply, not alter, the work of the people's representatives. A judge who likes every outcome he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels."
John Malcom, Heritage Foundation Director of the Edwin Meese III Center for Legal and Judicial Studies and the Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, writes:
Gorsuch has thought deeply about the judge's proper role in our society and about separation of powers - a constitutional construct that serves to protect the liberties of all Americans. He understands that policy judgments are to be made by legislators, not judges.
In a tribute to Scalia, Gorsuch noted that "legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future." However, he observed, judges are different. Their job is "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—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.
Clearly, then, Gorsuch is a judge cut from the same mold as Scalia. He approaches important cases by studying the text and structure of the Constitution and trying to interpret its words and phrases in accordance with how those words and phrases would have been understood by the people who ratified them. As he put it so eloquently in one of his opinions, the Constitution "isn't some inkblot on which litigants may project their hopes and dreams . . . but a carefully drafted text judges are charged with applying according to its original public meaning.
During his ten years on the Tenth Circuit Court of Appeals, Judge Gorsuch demonstrated a robust record of conservative jurisprudence. He upheld religious liberty rights of employers to not pay for health insurance plans that violated their religious beliefs in the cases of Hobby Lobby v. Burwell and Little Sisters of the Poor v. Burwell. He also challenged the practice of Chevron deference in Gutierrez-Brizuela v. Lynch, which forces judges to defer to a federal agency's interpretation of their own ambiguous statute. And he defended the Fourth Amendment rights of property owners from unreasonable searches and seizures from the federal government in United States v. Carloss.
Judge Gorsuch is a highly-qualified nominee with a long list of credentials. He received his bachelor's degree with honors from Columbia University in 1998 and went on to attend Harvard Law School as a Harry Truman Scholar, graduating in 1991 with honors. After law school, he attended Oxford University as a Marshall Scholar, and he received his Doctorate in Philosophy in 2004. Gorsuch clerked for Justice Byron White and Justice Kennedy of the U.S. Supreme Court as well as Judge David Sentelle of the U.S. Court of Appeals for the D.C. Circuit. On July 20, 2006, Judge Gorsuch was confirmed by the U.S. Senate to the Tenth Circuit U.S. Court of Appeals by a voice vote, without recorded opposition. 11 current Democrat Senators, including current Minority Leader Chuck Schumer, were in office when Judge Gorsuch was confirmed.
Neal Katyal, who served as acting solicitor general in the Obama administration, stated:
I have no doubt that, if confirmed, Judge Gorsuch would help to restore confidence in the rule of law. His years on the bench reveal a commitment to judicial independence—a record that should give the American people confidence that he will not compromise principle to favor the president who appointed him.
Judge Neil Gorsuch is a highly-qualified nominee who will, based on his record, interpret the text of the Constitution as it was written, honor the separation of powers, uphold the rule of law, and defend religious liberty and all other individual rights established in the Constitution.
Over the weekend, Senate Majority Leader Mitch McConnell explained that "filibustering judges at all is a rather recent phenomenon" and noted that Justice Clarence Thomas was confirmed 52 to 48, and even though he was controversial at the time, "not a single senator said, 'He has to get 60 votes.'" The Senate should carry out its 'Advise and Consent' role and confirm Judge Neil Gorsuch to the Supreme Court.
A Closer Look at Neil Gorsuch, an Excellent Choice for the Supreme Court
Trump's Supreme Court Pick Is Antonin Scalia's Mirror Image
Approach to The Law Makes Gorsuch Good Fit For Supreme Court
Judge Gorsuch Deserves Support For Supreme Court
Legal Experts Say Hearings Show Gorsuch Will Be 'Excellent' Justice, Predict Confirmation
6 Takeaways From Neil Gorsuch's First Day of Questioning