By the book on ‘original’ Constitution
IN naming Judge Neil Gorsuch as his Supreme Court nominee, President Trump showed that he was serious all along about an issue that secured his election as much as any other. He also picked someone who, perhaps more than anyone on his fabulous list, fits the mold — or robe — of the irreplaceable Antonin Scalia.
When Justice Scalia died nearly a year ago, the race for the White House turned exceedingly urgent. The Supreme Court’s balance could shift for the first time in two generations. The Senate kept the vacancy open through the election, a risky political gambit that paid off when so many conservatives and other erstwhile NeverTrumpers came out for Trump on Election Day.
They did so because Trump, breaking another rule of presidential campaigns, had released a list of potential court nominees, one notable for its geographic breadth and professional depth. Yet even on that starstudded list, Gorsuch was a superstar.
Gorsuch is an originalist, always looking to the original meaning of the Constitution and its structural protections for liberty.
He’s also a textualist, with a strong com- mand of how to interpret statutes according to their plain meaning — in particular construing them narrowly when they involve criminal penalties, like Scalia did. Also like Scalia, Gorsuch isn’t a fan of legislative history, noting “the difficulties of trying to say anything definitive about the intent of 535 legislators and the executive.”
As a Harvard Law graduate, Gorsuch doesn’t break the duopoly that that school and Yale enjoy on the high court. But he’s no pointy-headed intellectual. The native Coloradan hunts and fishes, and worked as a furniture mover and hotel front-desk clerk. Scalia lamented the absence of a “genuine Westerner” on the Supreme Court. Well, now we’ll have one.
Gorsuch is best known for his opinions supporting religious liberty and pushing back on the administrative state. These will be a focus of his confirmation hearings.
He’s an elegant writer, one with a penchant for clear yet memorable turns of phrase, like Scalia. “There’s an elephant in the room with us today,” he wrote in reference to the excessive deference judges pay to executive agencies. “Maybe the time has come to face the behemoth.”
Gorsuch was confirmed by voice vote to the Denver-based 10th Circuit in 2006. Like Scalia, he now merits a similar unanimous path to the Supreme Court.