Conservative Gorsuch Emulates Scalia Minus the Rough Edges

Judge Neil Gorsuch (AP Photo/David Zalubowski)

If confirmed by the Senate to the Supreme Court, Neil Gorsuch would fill the seat of the man he seeks to emulate as a jurist.

He would be the first justice to serve alongside a colleague for whom he worked. On Tuesday, Gorsuch described his former boss, Justice Anthony Kennedy, as one of the judges who brought him up in the law.

President Donald Trump nominated Gorsuch to fill the seat of Justice Antonin Scalia, who died nearly a year ago. Trump said he was delivering on his pledge to choose someone in Scalia’s mold.

Gorsuch, a federal appeals court judge in Denver for the past 11 years, said he adheres to Scalia’s approach to the law, evaluating the Constitution and laws by how they were understood when they were written. He also shares with Scalia a flair for writing.

But unlike the sometimes irascible Scalia, Gorsuch approaches his work with a courtly manner more reminiscent of Kennedy.

Jeffrey Rosen, president and CEO of the bipartisan National Constitution Center in Philadelphia, has known Gorsuch since they worked as clerks on the federal appeals court in Washington, though for different judges.

“His opinions stand out for his prose and analysis, and he gets along really well with both sides,” Rosen said.

Gorsuch would preserve the balance of the Court when Scalia was there: 4 liberals, 4 conservatives, and the moderate Kennedy, who is generally considered to be right-of-center.

Should Kennedy, 80, or liberal justices Ruth Bader Ginsburg, 83, or Stephen Breyer, 78, leave the Court in the next four years, Trump then would have a chance to appoint a justice whose vote could perhaps flip the Court a range of hot-button issues.

It’s unclear how quickly majority Republicans might be able to move Gorsuch’s nomination through the Senate or whether Democrats will try to block him. Gorsuch could join the court in time for the last arguments of the term in the spring.

A big issue in the next Court term could be whether some partisan redistricting violates the Constitution. Critics of labor unions also are likely to bring before the court a case that could damage the financial viability of unions that represent government workers, an issue on which the court split 4-4 after Scalia’s death.

From his time on the appeals court, Gorsuch’s notable opinions include defense of religious freedom. In two cases that involved the Obamacare mandate to provide certain medications, Gorsuch sided with businesses and non-profit groups that voiced religious objections to the medications under their health plans.

Gorsuch also has written opinions that question 30 years of Supreme Court rulings that allow federal agencies to interpret laws and regulations. Gorsuch has said that federal bureaucrats are allowed to accumulate too much power at the expense of Congress and the courts. Those rulings “permit 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,” he wrote last year. Justice Clarence Thomas has raised similar concerns.

Notre Dame law professor John Copeland Nagle said he sees an irony in Trump’s selection of Gorsuch. “Who would have guessed that President Trump’s most important decision in his first weeks in office would be to limit his own power?” Nagle said. The choice of Gorsuch “does just that.”

In background and style, Gorsuch resembles the group he may soon join. He would be the sixth member of the bench to have attended Harvard Law School; the other three have law degrees from Yale. Seven of the eight justices previously served as appellate court judges, Gorsuch’s current job. He was a Supreme Court law clerk, along with three other justices.

While he is a native Coloradan, Gorsuch spent his high school years in Washington because his mother, Anne Gorsuch, was EPA administrator in the Reagan administration. At 49 years old, he’s the youngest nominee since Thomas, who was 43 when he joined the Court more than 25 years ago.

Gorsuch differs from all of his prospective colleagues in one respect: On a court with five Catholics and three Jews, he would be the lone Episcopalian.

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