Trump announced at 8 p.m. this evening that he is nominating Neil Gorsuch for the Supreme Court seat left empty by Antonin Scalia’s death last year.
Neil Gorsuch, 49, is a federal judge based in the Tenth Circuit Court of Appeals in Denver, Colorado. Gorsuch attended Columbia University and Harvard Law School. Gorsuch also won a Marshall scholarship to Oxford, where he received his Ph.D in legal philosophy. He is a former Supreme Court clerk to Justices Anthony Kennedy and Byron White.
Although Gorsuch stated that his “personal views . . . have nothing to do with the case before me in any case” during the 2006 confirmation hearings for his current seat, he is reliably conservative. He is a proponent of the legal theory of construction known as originalism, which Justice Scalia also espoused. Under this doctrine, judges should strive to interpret the Constitution as it was understood at the time of its drafting. An originalist examines a matter as Thomas Jefferson would – not as one would after the evolution of laws over the past 250 years.
He is also a textualist—meaning, he considers only the words of a law being reviewed, he does not look to legislators’ intent in drafting it or the consequences of the decision. He has said that judges should use “text, structure and history” to understand what the law is, “not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.”
Proponents of originalism tend to be against abortion because the Constitution does not contain an explicit right to privacy. The decision Roe v. Wade, which found abortions to be legal nationwide, rests instead on a right to privacy that falls within the “penumbra” of implied rights found in the Bill of Rights and in centuries of precedent. Gorsuch has not ruled on the topic of abortion; however, he has authored a book in which he wrote that “all human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong.”
Gorsuch is a strong proponent of religious exemptions. He wrote a concurring opinion in the 10th Circuit, in what would become the Hobby Lobby case in the Supreme Court. That case concerned whether a business owner could, on freedom of religion grounds, refuse to provide female employees with no-cost access to contraception. (The Supreme Court found requiring an employer to do so violates the Religion Freedom Restoration Act.) In his opinion, Gorsuch, citing Supreme Court precedent, stated that it “was not, is not, the place of courts of law to question the correctness or the consistency of tenets of religious faith, only to protect the exercise of faith.”
Should Congress’s proposed First Amendment Defense Act, which would permit discrimination against LGBTQ community members if predicated on the basis of religion, become law and be challenged before the Supreme Court, Hobby Lobby likely is a good prediction of how Gorsuch would rule.
If confirmed, expect Gorsuch to be a predictable conservative in the mold of Scalia. As Gorsuch said in a speech before Case Western Reserve University Law School, “The great project of Justice Scalia’s career was to remind us of the differences between judges and legislators.” He continued 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 judges should do none of these things in a democratic society.”
WHAT HAPPENS NEXT
With Trump’s nominee named, the Senate Judiciary Committee will now vet the candidate by looking at his credentials and background. The Committee is chaired by Republican Chuck Grassley of Iowa. (The ranking Democrat is Patrick Leahy of Vermont.) Other Republican members of the committee are Senators Lindsey Graham, John Cornyn, Michael Lee, Ted Cruz, Ben Sasse, Jeff Flake, Mike Crapo, Thom Tillis, and John Kennedy. Democratic members are Dianne Feinstein, Dick Durbin, Sheldon Whitehouse, Amy Klobuchar, Al Franken, Christopher Coons, Richard Blumenthal and Mazie Hirono.
After the candidate is vetted, the Committee will hold confirmation hearings. (In theory, at least; this is where Judge Merrick Garland’s nomination process stalled. Given Republican control, it is likely that confirmation hearings will go forward.) After the hearings, the committee decides whether the full senate will vote on the nominee.
Once before the Senate, a simple majority vote is required. There are currently 52 Republican senators and 2 Independents, so a straight vote along party lines would
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