Judge Neil Gorsuch of the Tenth Circuit is now said in some reports to be the frontrunner for nomination to the Supreme Court. That makes me feel old. In the early 1980s when I practiced environmental law, his mother, the late Anne Gorsuch, was the controversial head of the EPA. Anne Gorsuch was my senior by only seven years.
Neil Gorsuch looks like a fine candidate for the Supreme Court. Here is how Eric Citron at ScotusBlog describes him:
Both his pre-judicial resumé and his body of work as a judge make him a natural fit for an appointment to the Supreme Court by a Republican president. He is relatively young (turning 50 this year), and his background is filled with sterling legal and academic credentials.
He was a Marshall Scholar at the University of Oxford, graduated from Harvard Law School, clerked for prominent conservative judges (Judge David Sentelle of the U.S. Court of Appeals for the District of Columbia Circuit, as well as Justices Byron White and Anthony Kennedy of the Supreme Court), and was a high-ranking official in the Bush Justice Department before his judicial appointment.
He is celebrated as a keen legal thinker and a particularly incisive legal writer, with a flair that matches — or at least evokes — that of the justice whose seat he would be nominated to fill. In fact, one study has identified him as the most natural successor to Justice Antonin Scalia on the Trump shortlist, both in terms of his judicial style and his substantive approach. . . .
[T]he great compliment that Gorsuch’s legal writing is in a class with Scalia’s is deserved: Gorsuch’s opinions are exceptionally clear and routinely entertaining; he is an unusual pleasure to read, and it is always plain exactly what he thinks and why.
Judge Gorsuch’s legal thinking also evokes Justice Scalia:
Like Scalia, Gorsuch also seems to have a set of judicial/ideological commitments apart from his personal policy preferences that drive his decision-making. He is an ardent textualist (like Scalia); he believes criminal laws should be clear and interpreted in favor of defendants even if that hurts government prosecutions (like Scalia); he is skeptical of efforts to purge religious expression from public spaces (like Scalia); he is highly dubious of legislative history (like Scalia); and he is less than enamored of the dormant commerce clause (like Scalia).
In fact, some of the parallels can be downright eerie. For example, the reasoning in Gorsuch’s 2008 concurrence in United States v. Hinckley, in which he argues that one possible reading of the Sex Offender Registration and Notification Act would probably violate the rarely invoked non-delegation principle, is exactly the same as that of Scalia’s 2012 dissent in Reynolds v. United States.
Citron cites one area where Gorsuch differs from Scalia. In Gutierrez-Brizuela v. Lynch, Gorsuch criticized the administrative law doctrine of Chevron deference (deference to federal agencies when the statutes they administer are ambiguous on a matter) that Scalia had long defended. Those of us concerned about the power of the administrative state will probably consider Gorsuch’s stance on Chevron deference to be another point in his favor.
Citron agrees that Gorsuch’s view of Chevron is more conservative than Scalia’s:
[Gorsuch] believes even. . .broadly worded enforcement statutes have objective meanings that can be understood from their texts; that it is the job of the courts to say what those laws mean and to tell agencies when they do not have the best reading; and that if the agency disagrees, the only proper recourse is for Congress to change the law or the Supreme Court to correct the error.
Scalia, on the other hand, wanted to limit courts to the role of reviewing agency implementations of these kinds of statutes for clear error in order to prevent “ossification,” recognizing that the understanding of these kinds of laws might need to change from time to time to accommodate changing priorities among presidents and changing conditions on the ground.
Citron suggests that the difference between the two jurists on this point is not as sharp as one might think. In practice, Scalia was much more willing than most to say that a particular agency position was beyond the statutory bounds, even when the words at issue in the statute were ambiguous. And as a textualist, Scalia was less willing than most to find statutory language ambiguous.
Ed also recalls that Judge Gorsuch once wrote a piece for NRO. His words, written in 2005, are an expression of “judicial modesty” that some conservatives may not fully embrace these days, after Chief Justice Roberts’ 2012 ruling on the Obamacare individual mandate. (I still disagree with Roberts’ opinion, but he can now claim that his belief in the political process as arbiter of intense policy disagreements — if that’s what drove his decision — has been vindicated.) However, I think the views Judge Gorsuch expressed in 2005 are sound as a general matter:
American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education.
This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary. In the legislative arena, especially when the country is closely divided, compromises tend to be the rule the day. But when judges rule this or that policy unconstitutional, there’s little room for compromise: One side must win, the other must lose.
In constitutional litigation, too, experiments and pilot programs–real-world laboratories in which ideas can be assessed on the results they produce–are not possible. Ideas are tested only in the abstract world of legal briefs and lawyers arguments. As a society, we lose the benefit of the give-and-take of the political process and the flexibility of social experimentation that only the elected branches can provide.
At the same time, the politicization of the judiciary undermines the only real asset it has–its independence. Judges come to be seen as politicians and their confirmations become just another avenue of political warfare. Respect for the role of judges and the legitimacy of the judiciary branch as a whole diminishes.
The judiciary’s diminishing claim to neutrality and independence is exemplified by a recent, historic shift in the Senate’s confirmation process. Where trial-court and appeals-court nominees were once routinely confirmed on voice vote, they are now routinely subjected to ideological litmus tests, filibusters, and vicious interest-group attacks. It is a warning sign that our judiciary is losing its legitimacy when trial and circuit-court judges are viewed and treated as little more than politicians with robes.
Judge Gorsuch isn’t the only strong candidate for the Supreme Court on Team Trump’s list (I’m a fan of Judges Bill Pryor and Diane Sykes.) However, Gorsuch appears to be among the strongest.