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President Donald Trump selected 10th Circuit Judge Neil Gorsuch on Tuesday evening as his nominee to fill the Supreme Court seat left vacant for nearly a full year by Justice Antonin Scalia, who died last February.
Trump, who promised along the campaign trail to select a judge “in the mold of Scalia,” made the announcement from the East Room of the White House just after 8 p.m. in Washington.
“This has been the most transparent and most important Supreme Court selection process in the history of our country, and I wanted the American people to have a voice in this nomination,” Trump said. “Judge Gorsuch has a superb intellect, an unparalleled legal education, and a commitment to interpreting the Constitution according to its text.”
Gorsuch, from Colorado, graduated from Harvard Law School and clerked for Supreme Court Justices Byron White and Anthony Kennedy. Gorsuch was nominated to the 10th Circuit US Court of Appeals in 2006 by President George W. Bush. He was confirmed by a voice vote.
Like Scalia, Gorsuch is an avowed textualist, interpreting a law according to its plain text over the intent of its writers or that law’s consequences, and originalist, interpreting the law according to the meaning of the Constitution as it was written.
At just 49 years old, Gorsuch would become the youngest justice on the Supreme Court if confirmed by the Senate.
Gorsuch is well known for his votes and opinions in favor of religious liberty. In perhaps his most notable case, he sided with claimants Hobby Lobby and Little Sisters of the Poor, which argued that the Affordable Care Act’s contraceptive mandate violated their religious beliefs.
The government must not force those with “sincerely held religious beliefs” to be complicit in “conduct their religion teaches to be gravely wrong,” Gorsuch wrote in his opinion.
The case went to the Supreme Court in 2014. In a 5-4 vote, the court reached the same decision as Gorsuch.
In criminal law, too, Gorsuch applies a textualist interpretation and often sides with defendants over prosecutors in an effort to avoid criminalizing conduct that could potentially be innocent.
In one 2013 case, for instance, Gorsuch upheld a lower court’s ruling that a police officer in Lafayette, Colorado, who used a stun gun on 22-year-old Ryan Wilson, who died from the incident, had qualified immunity, The Denver Post reported.
According to Gorsuch, all officers were protected under broadly applied qualified-immunity laws, with the exception of “the plainly incompetent or those who knowingly violate the law.”
Gorsuch has also been a staunch opponent of what he calls “executive overreach,” a position that could appease many Republicans who criticized the Obama administration’s use of executive orders to cut through congressional gridlock, while also reassuring Democrats worried about the ramifications of Trump’s executive orders.
Executive bureaucracies, according to Gorsuch, “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,” he wrote.
In keeping with Republican tradition, Gorsuch leans in favor of state power over federal power – an approach that can be challenging in civil-rights cases that frequently revolve around the power of “rogue” state laws, Justin Marceau, a University of Denver law professor, told The Denver Post.
“We would see a judge who, while perhaps not as combative in personal style as Justice Scalia, is perhaps his intellectual equal,” Marceau said, “and almost certainly his equal on conservative jurisprudential approaches to criminal justice and social justice issues that are bound to keep coming up in the country.”
Gorsuch now faces Senate confirmation and the possibility of a Democratic filibuster. Breaking such a filibuster would require a 60-vote supermajority, and the Republicans hold 52 seats. Many left-leaning groups and Democratic politicians released statements following Trump’s announcement expressing concern over Gorsuch’s nomination and hinting at a coming confirmation battle.
Senate Minority Leader Chuck Schumer signaled a confirmation fight, saying the Senate must “insist upon 60 votes” for any nominee, “a bar that was met by each of President Obama’s nominees.”
“The burden is on Judge Neil Gorsuch to prove himself to be within the legal mainstream and, in this new era, willing to vigorously defend the Constitution from abuses of the executive branch and protect the constitutionally enshrined rights of all Americans,” he said. “Given his record, I have very serious doubts about Judge Gorsuch’s ability to meet this standard.
“Judge Gorsuch has repeatedly sided with corporations over working people, demonstrated a hostility toward women’s rights, and most troubling, hewed to an ideological approach to jurisprudence that makes me skeptical that he can be a strong, independent justice on the court,” he continued. “Make no mistake, Senate Democrats will not simply allow but require an exhaustive, robust, and comprehensive debate on Judge Gorsuch’s fitness to be a Supreme Court justice.”
Schumer’s counterpart, Senate Majority Leader Mitch McConnell, has the “nuclear” option at his disposal – rewriting the Senate rules by simple majority to eliminate the filibuster for Supreme Court nominations. But, McConnell is known to disdain the idea of blowing up the rules. He said in the days leading up to Trump’s decision that he believed 60 votes would be attainable.
In a statement following Gorsuch’s nomination, McConnell, who led the blockade against Judge Merrick Garland, President Barack Obama’s nominee to fill the vacant seat last year, praised Trump, saying he had made an “outstanding decision.”
He also called for Gorsuch to receive “fair consideration.”
“When the Senate previously confirmed him to the appellate court, the bipartisan support in the Senate was so overwhelming, a roll-call vote was not even required,” McConnell said. “I hope members of the Senate will again show him fair consideration and respect the result of the recent election with an up-or-down vote on his nomination, just like the Senate treated the four first-term nominees of Presidents Clinton and Obama.”