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Trump nominates Gorsuch to fill Scalia vacancy

After weeks of speculation about potential nominees to the Supreme Court, President Donald Trump today nominated Judge Neil Gorsuch, a judge on the U.S. Court of Appeals for the 10th Circuit, to fill the vacancy left by the death of Justice Antonin Scalia nearly a year ago. If Gorsuch is confirmed, it will mark an enormous victory for Senate Republicans, who vowed immediately after Scalia’s death to block any nominee advanced by then-President Barack Obama on the ground that the next president should appoint Scalia’s successor instead. The Republicans’ strategy seems likely to prove successful; if so, it will have thwarted the general shift to the left by the court that almost certainly would have occurred if Obama’s nominee, Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit, had replaced Scalia. Instead, a Gorsuch confirmation would preserve the ideological balance that existed on the court when Scalia died and extend it for a quarter-century or more – and create the possibility that the court could shift further to the right if another vacancy occurs during the Trump administration.

After originally suggesting that the nomination would come on Thursday of this week, yesterday Trump revealed in a tweet that the nomination instead would be broadcast live this evening. And today the nomination announcement seemed to take on a reality-television air, with rumors circulating that both Gorsuch and Judge Thomas Hardiman of the U.S. Court of Appeals for the 3rd Circuit, who was also believed to be a finalist for the job, had come to Washington without knowing which one would ultimately be selected.

But tonight Trump made it official, in a ceremony that was perhaps most notable for the extent to which it hewed closely to tradition: Gorsuch is his choice. Introducing Gorsuch, Trump noted that, after the death of Justice Scalia (whose widow, Maureen, attended the nomination announcement), he had pledged to name “the very best judge in the country for the Supreme Court” – someone “who loves our Constitution.” Gorsuch, Trump emphasized, meets those criteria, with a tremendous intellect and discipline and bipartisan support. Trump encouraged both political parties to come together to confirm Gorsuch, whom he described as “a man our country really needs and needs badly to ensure the rule of law and justice.”

In his own brief remarks, the 49-year-old Gorsuch characterized the Court’s work as “vital” to the country, and he paid homage to what he called the “towering judges that have served” in the seat that he has been nominated to fill. He indicated that he looked forward to meeting with senators from both sides of the aisle as part of the confirmation process, and he gave a hint of his judicial philosophy. The Senate, he stressed, is the “greatest deliberative body in the world.” Judges, on the other hand, should “apply rather than alter” the law; a judge who likes all of the outcomes in his cases, Gorsuch suggested, “is a bad judge.” After giving thanks for his family, friends, and faith, Gorsuch concluded that he was “honored and humbled.”

During his campaign for the presidency, Trump worked closely with conservative legal groups like the Heritage Foundation and the Federalist Society to compile a list of potential nominees, which he released before the election. Gorsuch did not appear on the original list, but he was included on a second list released by the Trump campaign last fall. In recent weeks, his name surfaced as one of several finalists for the job, and in the last ten days he emerged as the frontrunner, as the stock of another frontrunner, Judge William Pryor of the United States Court of Appeals for the 11th Circuit, seemed to fall. Pryor reportedly had the support of Senator Jeff Sessions, Trump’s nominee to serve as the U.S. attorney general, but a possible Pryor nomination could have drawn the ire of both the left and the right: Although Pryor has referred to the Supreme Court’s 1973 decision in Roe v. Wade, holding that the Constitution protects a woman’s right to an abortion, as an “abomination” and has supported Texas in a challenge to the state’s law criminalizing private consensual sex between two same-sex partners, he also recently voted to uphold a lower court’s ruling in favor of a transgender woman who contended that she had been fired from her job because of her transition from a man to a woman.

Nominating Gorsuch may have been, for Trump and his team, a way to lock in the support of the Republican Party’s conservative base while avoiding the confirmation battle that could have resulted from nominating Pryor. Gorsuch is widely regarded as a gifted writer and incisive thinker who holds a doctorate in legal philosophy from Oxford; a recent study suggested that Gorsuch (along with Pryor) was one of the potential nominees whose jurisprudence would be most likely to emulate Scalia’s.

The Gorsuch nomination drew praise from conservative politicians and legal scholars. Senator Lindsey Graham, a Republican from South Carolina who has butted heads with the president, called Gorsuch a “great choice,” while Leonard Leo of the Federalist Society hailed Gorsuch as a “distinguished, exceptionally well qualified, and widely respected” judge. Liberal groups largely committed to opposing Gorsuch’s confirmation. The Alliance for Justice criticized Gorsuch as a “disastrous choice,” arguing that he would “put the agenda of powerful special interests ahead of the rights of everyday people,” while the National Partnership for Women and Families lambasted the nomination as an “affront to all who care about women’s health and rights and about stopping discrimination.” But the opposition was not completely uniform. Neal Katyal, who served as the acting solicitor general during the Obama administration and successfully litigated on behalf of detainees held in the Guantanamo Bay prison facilities, released a statement of support for Gorsuch, whom praised as one of “the most thoughtful and brilliant judges to have served our nation over the last century” and “a wonderfully decent and humane person.” Like Pryor, Gorsuch has a solidly conservative track record. His nomination is particularly likely to appeal to religious conservatives. In 2013, he supported the retail chain Hobby Lobby in the company’s challenge to the Affordable Care Act’s requirement that employers provide their female employees with health insurance that includes access to certain forms of birth control; by a vote of 5-4, the Supreme Court upheld the full 10th Circuit’s ruling for the company. Gorsuch wrote a separate opinion to note that he would have allowed the company’s owners to bring their own claims that the mandate violated their religious beliefs, rather than doing so on the company’s behalf. He explained that, from the owners’ perspective, “it is their personal involvement in facilitating access to devices and drugs that can have the effect of destroying a fertilized human egg that their religious faith holds impermissible.” Moreover, he added, courts should steer clear of determining whether a religious belief is sincere and therefore entitled to protection.

Two years later, Gorsuch voted to rehear a decision against the Little Sisters of the Poor, who had challenged the birth-control mandate as it applied to religious non-profits. When the Little Sisters of the Poor failed to garner enough votes for rehearing in the 10th Circuit, Gorsuch joined a dissent by Judge Harris Hartz that described the three-judge panel’s decision for the government as “clearly and gravely wrong – on an issue that has little to do with contraception and a great deal to do with religious liberty.” “When a law demands that a person do something the person considers sinful,” the dissent continued, “and the penalty for refusal is a large financial penalty, then the law imposes a substantial penalty on that person’s free exercise of religion.” The dissent was mostly vindicated, as the Supreme Court agreed to grant review and – probably because the justices were deadlocked after Scalia’s death – sent the case back to the lower courts with instructions to work out a solution that would accommodate the non-profits’ religious beliefs while ensuring that female employees have full insurance coverage, including for birth control.

To be sure, Gorsuch’s views are not identical to those previously espoused by Scalia. In 2016, he suggested that courts should no longer defer to an agency’s interpretation of the statutes it is charged with administering, on the theory that courts – not agencies – should interpret the laws. Although this is an obscure issue from the perspective of the general public, Gorsuch’s position would work a sea change in the way courts review challenges to the actions of federal agencies.

Gorsuch has not weighed in directly on the issue of abortion. However, late last year the 10th Circuit heard a lawsuit brought by Planned Parenthood, which challenged Utah’s suspension of funding for the group after the disclosure of hidden-camera videos alleging that the organization’s clinics (although not in Utah) were selling fetal tissue. A three-judge panel ruled for Planned Parenthood; Gorsuch dissented from the denial of rehearing by the full court, albeit on largely procedural grounds.

Gorsuch’s writings on assisted suicide and euthanasia also at least suggest that he would support constraints (if not an outright ban) on abortion. Princeton University Press, which published his 2009 book on the subject, describes the book as providing “the most comprehensive argument against” the legalization of assisted suicide and euthanasia – adding that his argument is “based on a principle that … human life is intrinsically valuable.” If so, Gorsuch’s nomination would not be likely to tilt the balance on the Supreme Court on abortion; the real battle will be likely to come if any of the court’s oldest justices – Justices Anthony Kennedy, Ruth Bader Ginsburg, and Stephen Breyer, all of whom voted last year to strike down a Texas law restricting abortions – were to retire during a Republican administration.

Although a fourth-generation Coloradan, Gorsuch is no stranger to Washington. His mother, Anne Gorsuch Burford, was the director of the Environmental Protection Agency during the Reagan administration before resigning under pressure in 1983. As a teenager, Gorsuch served as a page in the U.S. Senate and graduated from Georgetown Preparatory School, a Catholic boys’ school in the Washington suburbs, before going on to Columbia University, where he was awarded a Harry S. Truman Scholarship, a fellowship that “supports the graduate education and professional development of outstanding young people committed to public service leadership.”

Gorsuch would later return to Washington as part of the city’s legal elite: After graduating from Harvard Law School, he clerked for Judge David Sentelle on the U.S. Court of Appeals for the District of Columbia Circuit and on the Supreme Court for Justice Anthony Kennedy and retired Justice Byron White. (Retired justices normally employ one law clerk each year and “share” that clerk with an active justice.) He then spent ten years in private practice at Kellogg Huber, a small but prestigious Washington law firm, before joining the U.S. Department of Justice during the George W. Bush administration. He was easily confirmed by a voice vote to his current job on the 10th Circuit in 2006, at the age of 38.

Gorsuch currently lives in the Denver area with his wife, Louise, and their two teenage daughters.

Recommended Citation: Amy Howe, Trump nominates Gorsuch to fill Scalia vacancy, SCOTUSblog (Jan. 31, 2017, 9:15 PM),