February 1 2017
Quote of the Day:
A judge who likes every outcome he reaches is very likely a bad judge,
--Judge Neil Gorsuch, nominated yesterday for a seat on the Supreme Court
The above quote is key because it indicates that Judge Neil Gorsuch believes in judging based on the law as written and not his own predilections. It is a legal approach that contrasts with the empathy approach former president Barack Obama sought in nominating associate justices to the Supreme Court.
A Wall Street Journal editorial hails Gorsuch as "Trump's Good Justice," and an originalist in the mold of the late Justice Antonin Scalia. The editorial notes:
No one can replace Antonin Scalia on the Supreme Court, but President Trump has made an excellent attempt by nominating appellate Judge Neil Gorsuch as the ninth Justice. The polarized politics of the Court guarantees a confirmation fight, but based on his record the 49-year-old judge is a distinguished choice who will adhere to the original meaning of the Constitution.
Judge Gorsuch is a leading light on the Tenth Circuit Court of Appeals, where he was appointed in 2006 by George W. Bush. He is well known in legal circles for his sharp prose, as well as for his arguments for religious liberty and his skepticism toward judicial doctrines that give too much power to the administrative state. He is also noted for a Scalia-like approach to criminal law that takes a dim view of vague statutes that can entrap the innocent.
This paper trail is important, especially given Mr. Trump’s relatively recent embrace of conservative judicial principles. Every recent Republican President has disappointed supporters with at least one of his Supreme Court picks. Sandra Day O’Connor and Anthony Kennedy drifted left over the years as they were feted by Washington elites, while David Souter was a disaster from the start.
Judge Gorsuch’s judicial record makes such a transformation on the High Court unlikely. When the Tenth Circuit heard Hobby Lobby v. Sebelius, a case that eventually went to the Supreme Court, Judge Gorsuch wrote a powerful concurrence supporting religious freedom and the right of a company to opt out of ObamaCare’s contraception mandate based on conscience. While the religious convictions at issue may be contestable or unpopular, Judge Gorsuch wrote, “no one disputes that they are sincerely held religious beliefs.”
Legal scholar Ed Whelan calls Gorsuch "a brilliant jurist and dedicated originalist and textualist" and quotes from Gorsuch's eulogy for Scalia. Ramesh Ponnuru calls him "a worthy heir to Scalia," who pays close attention to the text and grammar of the law.
It will be a hard confirmation battle. The Democrats, starting with Rep. John Lewis' boycott of the inauguration, seem to have come up with a new theory of legislation: absenting themselves from the Democratic process (including simply not showing up for votes) and calling whomever they don't like "illegitimate:"
“This is a stolen seat being filled by an illegitimate and extreme nominee, and I will do everything in my power to stand up against this assault on the Court,” said Senator Jeff Merkley, a Democrat from Oregon who has said he is committed to blocking the nominee.
Merkley is alluding to the GOP's refusal to hold hearings on nominee Merrick Garland, who was nominated in the last year of the Obama administration, leading Republicans to adopt the Biden rule, so called because then Senator Joe Biden argued that, if a vacancy on the high Court occurred at the same point in the George W. Bush second term, the Democrats should not hold hearings on a nominee.