On Tuesday, January 31, President Donald Trump announced that he will nominate 10th Circuit Judge Neil Gorsuch to fill the Supreme Court seat left behind by the late Justice Antonin Scalia last February.
Judge Gorsuch was appointed to the 10th Circuit by President George W. Bush in 2006. Judge Gorsuch is a graduate of Columbia University, with honors, and Harvard Law School, with honors. Following law school, Judge Gorsuch completed his doctorate at the University of Oxford as a Marshall Scholar. Gorsuch will become the 6th Harvard Law graduate on the current Supreme Court. Justices Clarence Thomas and Sonia Sotomayor hail from Yale Law School, and Justice Anthony Kennedy, representing the west coast, is of Stanford Law School.
Judge Gorsuch has clerked for high-profile jurists, including Judge David Sentelle of the U.S. Court of Appeals for the D.C. Circuit, and with Justices Byron White and Anthony Kennedy of the Supreme Court of the United States.
If President Trump’s test for his Supreme Court nomination was “like Scalia,” Judge Gorsuch certainly fits the bill. Judge Gorsuch is considered by many to be a textualist interpreter of statutes and the Constitution; an advocate for clearly-written criminal laws; a skeptic of efforts to eliminate religious expression from public areas; and a staunch antagonist to the reliance on legislative history – all like Justice Scalia.
Judge Gorsuch faced stiff competition from 3rd Circuit Judge Thomas Hardiman. While Gorsuch has been considered a favorite for many months among the judicial and political pundits, Hardiman flew up the ranks in the last several weeks due to his no-frills writing style and consistent conservative philosophy. Judge Hardiman is a graduate of the University of Notre Dame and Georgetown University Law Center, and happens to sit on the same bench as President Trump’s elder sister, Judge Mary Trump Barry. Still considered a top candidate for a future Supreme Court vacancy, Hardiman would be the first Supreme Court justice holding a Juris Doctor from Georgetown Law. Justice Scalia (Georgetown College, 1957) and Justice Edward Douglass White (Georgetown College, 1863) are the only two Supreme Court justices with degrees from Georgetown University.
Judge Gorsuch is most-known for his position on religious liberty. For example, in Hobby Lobby, he wrote a concurrence emphasizing the need to recognize that the imposition of the Affordable Care Act to force companies to provide employees with contraception was a significant burden on their religious exercise and in violation of the Religious Freedom and Restoration Act. Likewise, in Little Sisters of the Poor, Gorsuch joined the group of dissenters on the basis of insufficient deference to the plaintiff’s own religious beliefs.
Gorsuch does stray from Scalia in the field of administrative law. Justice Scalia was a proponent of Chevron Deference, which defers to an administrative agency’s interpretation of a regulation that has not been directly spoken on by Congress, as long as the interpretation is reasonable. Judge Gorsuch, however, has been vocal about bringing an end to the practice of agency deference. In Gutierrez-Brizuela, Gorsuch wrote the majority opinion, and a concurrence to his own opinion, where he expressed his personal views on the practice, even stating that “[w]e managed to live with the administrative state before Chevron. We could do it again.”
Aside from administrative law, Judge Gorsuch would appear to represent a continuation of the positions that Justice Scalia brought to the Court. Nearly 34 years younger than the eldest member of the Supreme Court, and if confirmed by the Senate, Gorsuch is expected to be a reliable conservative vote for many years to come.