The Noncontroversial Supreme Court Pick: Judge Neil Gorsuch

President Donald Trump fulfilled his campaign promise that his nominee to the Supreme Court be firmly in the mainstream of legal conservatism. The Senate should be thrilled to have the opportunity to consider Judge Neil Gorsuch’s nomination to the United States Supreme Court. His experience as an appellate court judge on the United States Court of Appeals 10th Circuit and as a law clerk to two Supreme Court Justices, Byron White and Anthony Kennedy, render him uniquely qualified for a seat on the Supreme Court. A graduate of Harvard University Law School and Oxford University, Judge Gorsuch is well-versed in legalese and legal philosophy.

A self-proclaimed “textualist” and “originalist,” Gorsuch is philosophically similar to the late Justice Antonin Scalia, whom he would be replacing if he is confirmed by the Senate. His belief that a judge ought “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 serve society best” provides for reaching conclusions at odds with one’s own political beliefs at times.

Despite being a textualist and originalist, as was Scalia, it is no guarantee that Gorsuch would rule in the same manner as Scalia. For example, Gorsuch has been assertive about revisiting and possibly revoking affording deference to executive agency interpretation of its own statutes and regulations, known as Chevron deference after the 1984 case of Chevron v. Natural Resources Defense Council. Scalia joined the majority of the Court in that opinion, but expressed reservations about the level of deference afforded to these agencies later in his tenure on the Supreme Court. Thus, Gorsuch could be willing to rein in administrative agencies in a greater capacity than Scalia. In fact, he believes that “Chevron (deference) permit(s) 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.” In essence, this area of administrative law is likely one of disagreement between Scalia and Gorsuch.

Gorsuch’s concern about the far-reaching power of the administrative state is not limited to the Chevron decision. In fact, in a 2013 speech at the Federalist Society’s National Lawyers Convention, Gorsuch expressed pointed unease about overcriminalization. Specifically, he spoke of the astronomical growth of the number of federal criminal statutes and regulatory crimes. “(W)e have about 5,000 criminal statutes…(and) thousands of additional regulatory crimes…that scholars have given up on counting and are now debating their number, ” he said. The American Legislative Exchange Council estimates that there are 300,000 or more regulatory crimes.

The nomination of Gorsuch suggests that Trump, who campaigned on aiming to remove onerous and burdensome government regulations, saw in Gorsuch a strong textualist and originalist. Gorsuch’s legal philosophy would lead him to reach decisions that would restore the balance of power between the executive branch and its agencies, the legislative branch, and the judicial branch, particularly in the field of administrative law and criminal law.

The Senate considered Gorsuch when President George W. Bush nominated him in 2006 to the 10th Circuit. He unanimously passed the Senate via voice-vote, with votes to confirm from former Senators John Kerry, Joe Biden, Hillary Clinton, and Barack Obama.  In addition, Senate Minority Leader Chuck Schumer also voted to confirm Gorsuch. His confirmation was appropriately noncontroversial.

Remarkably, Schumer has expressed “serious doubts” about whether Gorsuch should be confirmed to the Supreme Court and alluded to being willing to filibuster his confirmation process. Schumer stated Gorsuch must be willing to defend the Constitution from “abuses of the executive branch.” Schumer should be elated that Gorsuch has profound concerns about the power of the executive branch via the administrative state, particularly in administrative law and criminal law, both fields which have tremendous potential to harm individuals – sometimes irreparably.

Ultimately, Gorsuch is highly qualified to be a member of the United States Supreme Court. His distinguished career as a law clerk for two Supreme Court Justices, an attorney in private practice, and appellate court judge make for a stellar resume. When the Senate considers him, I hope they remember he is staunchly devoted to sound legal interpretation, not political results. “A judge who likes every outcome he reaches is very likely a bad judge, stretching for results he prefers rather than those the law demands,” he once wrote. Truly, Gorsuch is an individual both sides of the political aisle ought to agree on confirming, just as they did in 2006.