The Nomination of Neil Gorsuch to SCOTUS – Part I

Gorsuch’s Qualifications

Judge Neil Gorsuch is eminently qualified to serve on the United States Supreme Court.  After earning his undergraduate degree from Columbia, he attended law school at Harvard, graduating at the top of his class.  Judge Gorsuch then earned a second doctorate at Oxford University. He is the recipient of both the Truman Scholarship and the Marshall Scholarship, two of academia’s most prestigious honors.

After completing his education, Judge Gorsuch was appointed to two prestigious United States Supreme Court clerkships, the first with Justice Byron White and the second with Justice Kennedy. Gorsuch then served with distinction in the United States Department of Justice and in the private practice of law. President George W. Bush thereafter nominated Gorsuch to serve as a Judge on the United States Court of Appeals for the Tenth Circuit. During the advice and consent process, the American Bar Association evaluated Judge Gorsuch’s qualifications and found him “unanimously well qualified.” Every Democrat and Republican in the Senate thereafter confirmed his nomination to our nation’s second highest court, where he served with distinction for over a decade.

Gorsuch’s Record

My review of Judge Gorsuch’s judicial record shows he understands the limited role of the judiciary in our Constitutional Republic. It also reflects that he understands of the proper approach to interpreting the Constitution (i.e., the Constitution is not a living document where judges hold power to change it by adding rights with the ink in their pens).

In a recent speech he reaffirmed 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. But that judges should do none of these things in a democratic society. That judges should instead strive (if humanly and so imperfectly) 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 service society best.

At the announcement of his nomination Gorsuch quipped, “A judge who reaches every outcome he wishes is likely a very bad judge.” His prioritization of the rule of law and precedent  over his own personal views about policy is evident in his record. In United States v. Games-Perez, (10th Cir. 2012), he ruled against the grain of his own judgement in favor of the judgement required by long established precedent, saying, “Our duty to follow precedent sometimes requires us to make mistakes.” The value of a judiciary that respects precedent is that it provides predictability in the law and in the conduct of our affairs. Wrongly decided precedents inaccurately reflecting what the Constitution actually says however, require correcting .  In Gutierrez-Brizuela v. Lynch, (10th Cir., 2016), Gorsuch dutifully applied the Supreme Court’s established Chevron doctrine, while at the same time urging the Supreme Court to consider revisiting it. He wrote:

Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth. . .

This tells us that while he has proper respect for precedent, he is open to corrective action by the Supreme Court in cases where the precedent incorrectly reflects what the Constitution actually says.  This is a good start but leaves open the question of whether he considers the Court’s precedents inventing a “right” of personal autonomy/ identity incompatible with the plain meaning of the Constitution? Based upon his professed jurisprudential approach to interpreting the Constitution, the answer is clearly yes, especially when compared to the Bill of Rights explicitly  specified in the Constitution.  If Gorsuch considers the Court’s personal autonomy/ liberty precedents in need of correction, would he re-consider all those cases relying on this so-called “right” to justify things like abortion, homosexual conduct, and same sex marriage?  If he believes the Constitution requires states to determine policy matters like these, rather than unelected lawyers wearing Supreme Court robes, the answer is hopefully yes — at least for those who value a Supreme Court operating under the Rule of Law.

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