Matt McDaniel

4 minute read

President Donald J. Trump has selected 10th Circuit Court of Appeals Judge Neil Gorsuch to take Justice Antonin Scalia’s seat on the United States Supreme Court.

Nearly a year ago, on February 13, 2016, Justice Scalia died suddenly while on vacation. His death hit like a thunderbolt in conservative circles who saw the possibility that liberal President Barack Obama would get a third nominee on the nation’s highest court and shift the Court’s ideological balance decidedly to the left.

Despite the anger of the President, and the vitriol of the Left, Senate Majority Leader Mitch McConnell refused to entertain the former President’s nomination of Judge Merrick Garland. Leader McConnell contended that, given that the election was going to take place later in the year, it would be best for the American people to decide who should get a chance to appoint Scalia’s successor.

There were times, I’ll admit, when it seemed like Mitch McConnell’s decision would lead to ruin, that a moderate-to-liberal like Garland would be preferable to whoever Hillary Clinton would raise to the Court. However, the voters refused to put Hillary Clinton in that position, and, instead, chose Donald Trump.

Mr. Trump had raised fears early in the primaries among conservative circles that he lacked the credentials to be the nominee of the nominally-right-wing Party. In order to assuage those fears, and in order to head of criticism from primary opponents, Mr. Trump and his team put out a list of 21 judges from which Mr. Trump vowed to appoint a successor to Justice Scalia. The impressive list contained important regional diversity but clearly was well-grounded in originalist judicial philosophy.

According to an ABC News exit poll, over 20% of voters cited the Supreme Court as the most important issue in the election. Of those voters, 57% voted for Mr. Trump. Now Mr. Trump fulfills the promise he made on the campaign trail.


Background and Philosophy

Judge Gorsuch, a 49 year old from Denver Colorado, obtained his bachelor’s degree for Columbia, his JD from Harvard, and a PhD from Oxford. He has authored two books The Future of Assisted Suicide and Euthanasia and The Law of Judicial Precedent. In the book on assisted suicide, Judge Gorsuch argued that the practice should not be legalized.

Judge Gorsuch wrote a concurrence in a case before the 10th Circuit challenging the Obamacare contraceptive mandate (Hobby Lobby) and the Supreme Court sided with Judge Gorsuch’s logic in its ultimate ruling in favor of the business and religious exceptions. Judge Gorsuch has not weighed in on issues relating to abortion. In a 2007 religious freedom case, Summum v. Pleasant Grove City, Judge Gorsuch ruled that displaying a monument like the 10 Commandments would not, automatically, require a local government to display monuments to other religions.

Importantly, Judge Gorsuch has opposed Federal overreach by way of the “dormant commerce clause” and has tended towards states’ rights over encroachment by national laws.

Before his time on the 10th Circuit, Judge Gorsuch was a deputy to Robert McCallum, the Associate Attorney General in the Bush Administration. When he was appointed to the 10th Circuit, the Senate confirmed him by way of a voice vote (unanimously).

Judge Gorsuch began his legal career clerking for the DC Circuit then for both Justices Byron White and Anthony Kennedy. For the next decade, he was a lawyer at a high-power DC firm.


Procedural Posture

Judge Gorsuch, despite being eminently qualified for the position, faces mild headwinds from Democrats on Capitol Hill. Given that the nomination to the “Scalia Seat” is one of the principal reasons that Donald Trump is President, it is very likely that Senator McConnell and other Republicans will do everything in their power to force the nomination through to confirmation expeditiously.

The Garland Affair, as cited, above, is making Democrats feel empowered over the ability to be obstructionist (hey, the Republicans did it, so we can too!). However, given that the Republicans are the majority, Senator McConnell could change the rules of the Senate (like Democrats did when they were in power) and merely require a simple majority to confirm Judge Gorsuch to the Supreme Court.

While predictions in Washington are usually not good to make, there’s a strong likelihood, given the strength of Judge Gorsuch’s credentials, and that he’s being nominated to a seat that was vacated by a conservative, that Democrats may only bluster over the pick and not stand up to actively oppose it. Likewise, there are ten Democrats up for reelection in 2018 who are in states that voted for Donald Trump. Even if there was a filibuster, there’s a strong chance that a bipartisan group could get over the 60-vote requirement.

Barring some strange skeleton in the closet or financial impropriety, the odds of Judge Gorsuch being confirmed on a streamlined timetable are very high. He’s an excellent pick for the Court and a solid successor to one of the greats.