(Bloomberg) – President Donald Trump selected federal appellate judge Neil Gorsuch to fill the year-old U.S. Supreme Court vacancy, triggering what promises to be a contentious confirmation fight as Republicans look to entrench a conservative majority on the court for a generation.
Gorsuch, 49, is a champion of religious liberty known for his crisp and, at times, pointed writing style. He has faulted liberals for an "overweening addiction to the courtroom." Educated in Ivy League schools and the University of Oxford, he has served on the federal appeals court in Denver since being appointed by President George W. Bush in 2006.
"He was confirmed by the Senate unanimously” for his appellate court post, Trump said, alluding to the confirmation battle ahead. “Does that happen anymore?”
The nomination comes amid an outcry over Trump’s order restricting travel by people from seven predominantly Muslim countries. The controversy is likely to put new focus on the constitutional curbs on presidential power -- and the Supreme Court’s role in policing those limits -- as the Senate takes up the nomination.
If confirmed, Gorsuch (pronounced GORE-such) would in all likelihood largely track the voting pattern of the justice whose seat he would fill, the late Antonin Scalia. He would become the youngest justice since 43-year-old Clarence Thomas joined the court in 1991.
"Acutely aware of my own imperfections, I pledge that if I am confirmed I will do all that my powers permit to be a faithful servant of the Constitution and laws of this great country," Gorsuch said in brief remarks during Trump’s prime-time announcement in the White House East Room.
Democrats will be hard-pressed to stop the nomination given the 52-48 advantage Republicans hold in the Senate. Under current rules Democrats need only 41 votes to filibuster the nomination and block a vote, but Republicans could eliminate the filibuster for Supreme Court appointments with a simple majority vote. Senate Democratic leader Chuck Schumer has said his party will oppose any nominee who is outside the legal mainstream.
Gorsuch emerged relatively late in Trump’s decision-making process. He wasn’t on Trump’s original list of 11 prospective justices released in May but was added as a part of a second list distributed in September. He impressed Trump during an interview that thrust him into front-runner status, a person familiar with the decision said before the announcement.
Trump chose Gorsuch over fellow federal appellate judges Thomas Hardiman, William Pryor and Raymond Kethledge.
U.S. Chamber of Commerce President Thomas Donohue, in a statement, congratulated Gorsuch and said, "The election is over and now it’s time for the Senate to act."
Ilyse Hogue, president of abortion-rights group NARAL Pro-Choice America, said in a statement that Gorsuch "must never wear the robes of a Supreme Court justice" because he has a "clear track record of supporting an agenda that undermines abortion access and endangers women."
Gorsuch has never directly ruled on abortion rights, but in a 2006 book he argued against the legalization of assisted suicide and euthanasia. Trump promised during the campaign to appoint anti-abortion justices.
As a private lawyer at the law firm Kellogg Huber in Washington, he criticized class-action lawsuits. He argued in a 2005 paper for the conservative Washington Legal Foundation that companies facing meritless securities-fraud lawsuits had been pressured into settlements that benefited investors’ lawyers more than their clients.
Religious Rights
His best known appeals court cases were religious-rights disputes that ultimately reached the Supreme Court. Gorsuch sided with Hobby Lobby Stores Inc., whose owners objected to providing the birth-control coverage required under Obamacare. He said the fines they faced for noncompliance left them with "a choice between abiding their religion or saving their business."
Later, Gorsuch called for reconsideration of a ruling that required the Little Sisters of the Poor, an order of nuns, to submit a form the religious group said might facilitate contraceptive coverage.
A former law clerk to Justice Anthony Kennedy, Gorsuch would become the first justice ever to sit alongside his former boss at the Supreme Court. Kennedy, now the court’s swing vote, shared Gorsuch with retired Justice Byron White during the 1993-94 term. Gorsuch later worked in the Justice Department during the Bush administration.
Gorsuch is a fourth-generation Coloradan who earned his undergraduate degree at Columbia, his law degree at Harvard and a doctorate in legal philosophy at Oxford. He is the son of the late Anne Gorsuch Burford, who led a controversial effort to roll back the Environmental Protection Agency’s anti-pollution efforts as its administrator under President Ronald Reagan. Gorsuch and his wife, Louise, have two daughters.
Scalia Study
Though a confident writer, Gorsuch is less prone to inflammatory statements than Pryor, whose name Trump invoked on the campaign trail as a possible nominee. Gorsuch’s relative caution will leave Democrats with less ammunition as they consider how strongly to oppose the nomination.
A study led by Mercer University law professor Jeremy Kidd concluded that Gorsuch is the second-most similar to Scalia of the 21 prospective justices on the lists Trump released during the campaign.
Those similarities include a wariness toward criminal statutes that are so broadly worded they don’t provide notice of what type of conduct might invite prosecution.
“What happens to individual freedom and equality when the criminal law comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?” Gorsuch said in a 2013 speech to the Federalist Society.
Like Scalia, Gorsuch says he is willing to follow the law even when he doesn’t like the outcome of a case. Gorsuch said that’s what he did last year when he voted to allow a lawsuit by a New Mexico seventh-grade student who was arrested for disrupting a class by repeatedly burping. Gorsuch said police were on notice that students can’t be arrested for minor disruptions caused by "childish pranks."
‘Likely a Bad Judge’
"A judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels," Gorsuch wrote.
In at least one important respect, Gorsuch has gone even further than Scalia did in insisting that courts adhere strictly to the text of federal statutes. In an immigration case last year, Gorsuch called for jettisoning the 1984 Supreme Court decision that requires judges to defer to administrative agencies when they interpret ambiguous statutory language.
That decision and a later ruling "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," Gorsuch wrote.
The conservative Judicial Crisis Network has said it plans to spend at least $10 million on a nationwide campaign to support confirmation of the nominee.
Democrats are still smarting from Senate Republicans’ refusal to consider former President Barack Obama’s nomination of Judge Merrick Garland in March 2016 to fill the Scalia seat. That nomination would have given the court a majority of Democratic appointees for the first time since 1969.
The nomination could be one of several for Trump. Three other justices -- Kennedy, Ruth Bader Ginsburg and Stephen Breyer -- are at least 78.
