John Locke Update

Gorsuch is Worthy Heir to Scalia’s Legacy

posted on in Law & Regulation, Legal Update
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President Trump has nominated Neil Gorsuch to replace Antonin Scalia on the US Supreme Court, and I’m absolutely delighted.

Judge Gorsuch is a fourth-generation Coloradan whose academic and early professional career took him far from home. After earning degrees from Columbia, Harvard, and Oxford, and after several clerkships—including two at the Supreme Court—he was practicing law in Washington D.C. in 2006 when George W. Bush nominated him to fill a vacancy at the U.S. Court of Appeals for the 10th Circuit. The 10th Circuit meets in Denver, and so, when his nomination was unanimously approved by the U.S. Senate, Gorsuch was finally able to return to Colorado. With this new nomination, however, it looks like he’ll be leaving again.

I’ve been one of Judge Gorsuch’s admirers ever since I read his dissent in  United States v. Carloss. In a Legal Update that I wrote at the time I said it was, “Worthy of Justice Scalia,” and the same could be said of many of the other opinions he wrote for the 10th Circuit. Like Scalia, Gorsuch has a clear, forceful, and erudite style, and, like Scalia, his opinions are based on the text of the law under consideration, interpreted “according to its terms and in light of its historical meaning,” and applied impartially without any kind of cost/benefit analysis and regardless of his own political or ideological preferences.

Nowadays, many ambitious jurists keep their judicial philosophy to themselves for fear of jeopardizing their prospects for future confirmations. But not Judge Gorsuch! Last year, he used the occasion of a lecture at Case Western Reserve School of Law to eulogize Justice Scalia and explain why he believes Scalia’s originalism and commitment to the rule of law will endure. He began,

Perhaps the great project of Justice Scalia’s career was to remind us of the differences between judges and legislators. To remind us 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 serve society best. As Justice Scalia put it, “[i]f you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”

And he went on to make it clear that he personally endorsed Scalia’s project,

It seems to me an assiduous focus on text, structure, and history is essential to the proper exercise of the judicial function. That, yes, judges should be in the business of declaring what the law is using the traditional tools of interpretation, rather than pronouncing the law as they might wish it to be in light of their own political views, always with an eye on the outcome, and engaged perhaps in some Benthamite calculation of pleasures and pains along the way. Though the critics are loud and the temptations to join them may be many, mark me down too as a believer that the traditional account of the judicial role Justice Scalia defended will endure.

To me, that commitment to the rule of law, based on its text as originally understood, is exactly what we need on the Supreme Court, and I’m not the only one who feels that way. At the Volokh Conspiracy, Eugene Volokh—who is also “delighted” by the nomination—describes Gorsuch as, “Brilliant, thoughtful and temperate [with] the intellect of Justice Antonin Scalia [and] a flair for the written word.” At Heritage’s Daily Signal, John Malcolm and Elizabeth Slattery call Gorsuch, “An excellent choice.” At National Review, Ed Whelan reports that “Neil Gorsuch has an impressive judicial record as an originalist,” and Ramesh Ponnuru describes him as, “A worthy heir to Scalia.” At Cato, Ilya Shapiro declares that “Neil Gorsuch will make a fine justice.”

Nor are libertarians and conservatives the only ones who are pleased. The day after the nomination was announced, the New York Times published an opinion piece entitled, “Why Liberals Should Back Neil Gorsuch.” The piece was written by Neal K. Katyal, who represented Al Gore in Bush v. Gore and served as acting solicitor general in the Obama Administration. Katyal says:

I am hard-pressed to think of one thing President Trump has done right in the last 11 days since his inauguration. Until Tuesday, when he nominated an extraordinary judge and man, Neil Gorsuch, to be a justice on the Supreme Court.

The nomination comes at a fraught moment. The new administration’s executive actions on immigration have led to chaos everywhere from the nation’s airports to the Department of Justice. They have raised justified concern about whether the new administration will follow the law. More than ever, public confidence in our system of government depends on the impartiality and independence of the courts. …

Considerable doubts about the direction of the Supreme Court have emerged among Democrats in recent weeks, particularly given some of the names that have been floated by the administration for possible nomination. With environmental protection, reproductive rights, privacy, executive power and the rights of criminal defendants (including the death penalty) on the court’s docket, the stakes are tremendous. I, for one, wish it were a Democrat choosing the next justice. But since that is not to be, one basic criterion should be paramount: Is the nominee someone who will stand up for the rule of law and say no to a president or Congress that strays beyond the Constitution and laws?

I have no doubt that if confirmed, Judge Gorsuch would help to restore confidence in the rule of law. His years on the bench reveal a commitment to judicial independence — a record that should give the American people confidence that he will not compromise principle to favor the president who appointed him.

Katyal’s surely not the only progressive who has suddenly realized the virtue of limited, constitutional government and the impartial application of the rule of law. It wouldn’t surprise me if there are enough of them in the Senate to win easy approval for Neil Gorsuch.

Jon Guze is the Director of Legal Studies at the John Locke Foundation. Before joining the John Locke Foundation, Jon practiced law in Durham, North Carolina for over twenty years. He received a J.D., with honors, from Duke Law School… ...

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