The New Supreme Court Nominee – Neil Gorsuch
Tuesday, 7 February 2017
by Erin McAllister, Paralegal
Gorsuch clerked for Judge David B. Sentelle on the United States Court of Appeals, for the D.C. Circuit, and then for United States Supreme Court Justices Byron White and Anthony Kennedy. He was a Deputy Associate Attorney General at the U.S. Department of Justice. From 1995 to 2005, Gorsuch was in private practice with the law firm of Kellogg, Huber, Hansen, Todd, Evans & Figel.
Gorsuch is the recipient of the Edward J. Randolph Award for outstanding service to the Department of Justice, and of the Harry S. Truman Foundation's Stevens Award for outstanding public service in the field of law He is the author of two books. His first book, The Future of Assisted Suicide and Euthanasia, was published by Princeton University Press. He is also one of 12 co-authors of The Law of Judicial Precedent, published by Thomson West.
He was born and raised in Denver, is an avid skier, and enjoys fly fishing. For a court dominated by New Yorkers with only one Californian, he brings geographical diversity. He's a gifted writer who goes out of his way to make his opinions accessible to average readers.
Gorsuch is a constitutional originalist and textualist, interpreting the Constitution as it was originally written, considering the exact wording of the law over its intent or consequences. Gorsuch has said, “When we judges don our robes, it doesn’t make us any smarter, but it does serve as a reminder of what’s expected of us: Impartiality and independence, collegiality and courage.”
Gorsuch also believes there are differences between judges and legislators. While legislators may bring their own desires and moral convictions to the lawmaking process, judges, must instead “apply the law as it is,” leaving their own values and preferences out of the process.
In his most notable 10th Circuit case, Gorsuch ruled in favor of the religious rights of Hobby Lobby Stores, which opposed parts of the Affordable Care Act that mandated coverage of contraceptives for employees. The Supreme Court eventually supported his ruling.
He similarly backed the Little Sisters of the Poor, a Catholic order, who also protested the contraceptive mandate.
Gorsuch has been a strong opponent of “executive overreach,” and critical of the consolidation of federal power and executive orders by then-President Barack Obama. Ironically, that position may win him some support among Democrats and Republicans alike who now fear the scope of President Trump’s executive orders.
He favors a limited role for the judiciary, leaving policy-making to the legislative and executive branches. “Often judges judge best when they judge least,” he wrote last year. When judges defer to the executive about the law’s meaning, he wrote, they “are not fulfilling their duty to interpret the law.” In strong terms, Judge Gorsuch called that a “problem for the judiciary” and “a problem for the people whose liberties may now be impaired” by “an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day.” That reflects a deep conviction about the role of the judiciary in preserving the rule of law.
He has generally favored the state over the federal government, and has criticized liberals for relying too much on the power of the courts rather than enacting laws to achieve their goals.
Gorsuch has expressed his support for term limits. “Recognizing that men are not angels, the Framers of the Constitution put in place a number of institutional checks designed to prevent abuse of the enormous powers they had vested in the legislative branch,” he wrote in 1992.
He is also critical of the Chevron deference, a principle in which courts generally defer to federal agencies when interpreting ambiguous regulations. Under the Obama administration, many Republicans said that deference gave the executive branch too much power — an argument many Democrats may rally behind now.
In a concurring opinion last year, Gorsuch wrote that the Chevron deference allows “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.”
Some Democrats have already said they would flatly oppose whoever President Trump picks in retaliation for Republicans blocking the nomination of Judge Merrick Garland for almost a year. There may, however, be some common ground in this nominee.
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