Officials confirm SCOTUS Appointment: President to Nominate Another Textualist To Fill Scalia’s Shoe

Officials confirm SCOTUS Appointment: President to Nominate Another Textualist To Fill Scalia’s Shoe

Photo Source: DenverPost.com

Photo Source: DenverPost.com

Andrew Broering, Politics Contributor

Officials have confirmed that President Trump intends to nominate 10th Circuit US Court of Appeals Judge Neil Gorsuch to fill the Supreme Court vacancy left by the late Antonin Scalia. One would have trouble finding a more appropriate jurist to fill Scalia’s shoes. Gorsuch’s record on the bench and pre-judicial resume support the comparisons. Moreover, Gorsuch is lauded by both critics and supporters for his writing style. Whether you disagree with the man’s decisions or not, he is clear about the rationales relied on in his judicial opinions. Generally, Gorsuch employs a highly acute writing style in the mold of Scalia and a clear analytical framework.


Like Scalia, Gorsuch is a celebrated conservative and textualist, relying on the plain meaning of words in their ordinary usage when interpreting constitutional provisions and federal statutes. He maintains that use of legislative history to determine Congressional intent is an unreliable endeavor at best and makes for dubious interpretations. Gorsuch also echoes Scalia’s prioritization of civil liberties in criminal law cases. He values the principle of legality (i.e. conduct can be punished only if there is first a law on the books clearly describing the conduct prohibited and the punishment for violation) and a corollary, the rule of lenity (i.e. When the Court finds ambiguity in the language, criminal statutes should be strictly construed against the government in favor of defendants).  Both judges also share a reputation for being proponents of states’ rights and not being fans of the dormant commerce clause. This is consistent with their textualist approaches, because the dormant commerce clause holds that the positive grant of power to the federal government in Article I, Sec. 8 implies a negative restriction on states. The implied limitation prohibits states from passing legislation that improperly burdens or discriminates against interstate commerce.


It is encouraging for a nominee’s confirmation prospects when the Supreme Court has largely affirmed his or her own decisions on some controversial areas. Gorsuch wrote or joined opinions that criticized doctrines curtailing religious expression in public places. Scalia’s concurrence in Pleasant Grove, City, Utah v. Summum (2007) asserted similar analysis to that employed by Gorsuch in multiple cases decided by the 10th Circuit. In any of them, the common theme is a belief that government programs need not be hostile or even completely neutral towards religion and remain Constitutional under the First Amendment establishment clause. Gorsuch has criticized the “reasonable observer test” in these cases because he finds it far too easily identifies an unconstitutional government endorsement of religion even when it is unlikely one was intended or could have materialized. He demonstrated this throughout his career, particularly in Green v. Haskell County Boad. of Commissioners (2009), NS American Atheists Inc. v. Davenport (2010).

One area where Scalia and Gorsuch’s legal reasoning may differ involves Chevron deference, an administrative law doctrine that uses a two-pronged test when interpreting statutory or regulatory language that is facially ambiguous. The first prong requires judges to decide whether ambiguity exists in the statutory language. If there is no ambiguity the Court’s interpretation of the statutory language’s plain meaning controls. Where ambiguity is found, the second prong of Chevron standard requires that the Court defer to the executive agency’s interpretation so long as it is reasonable. To be reasonable it really just has to be one among multiple interpretations. Gorsuch also tackled another aspect of Chevron that receives less attention - whether agencies are bound by prior judicial interpretations of the same statutory language or whether it applies prospectively. Both Scalia and Gorsuch believed that the agency interpretation does not trump prior judicial interpretation while cases on the matter are pending. Moreover, Scalia’s application of Chevron test was uniquely aimed at addressing the concerns raised by Gorsuch.

Barring any Anita Hill-type character assassination efforts against Gorsuch during hearings, he is likely to win confirmation. Gorsuch’s legal and academic background reinforces his qualifications. He was a Marshall Scholar at the University of Oxford, graduated from Harvard Law School, clerked for fairly conservative judge David Sentelle of the DC Circuit Court of Appeals, Justices Byron White and swing vote Justice Anthony Kennedy on the Supreme Court. He also served as a Justice Department official during the Bush administration before being appointed to the bench. Given that Supreme Court appointments are for life (death or until Justice resigns), Gorsuch’s relatively young age (he turns 50 this year), should reassure conservatives that the Court’s ideological balance will not abruptly shift left due to Scalia’s replacement. His jurisprudence also suggests he’d favor many pro-life legal challenges to abortion laws, which remains the top priority for social conservatives.

Democrats have little to gain by filibustering the nomination. Many Republicans gave due executive deference to President Obama’s appointments of progressive jurists Sonia Sotomayor and Elena Kagan by voting to confirm despite some differences of opinion. It would not be prudent for Democrats to squander the little political capital they currently have by adamantly opposing a Supreme Court appointment that won’t shift the Court either way ideologically. Republicans would likely still prevail through Democrat crossover votes or procedural maneuvering such as the nuclear option. If Democrats filibuster over any Court appointment, it would be one of the next ones to arise such as liberal Justice Ruth Bader Ginsburg. That is a seat, which if filled by conservative jurist, could risk undermining Democrats’ long term interests. For Conservatives who reluctantly voted for Trump to ensure that Scalia’s seat was not taken by a liberal jurist, the Gorsuch nomination will likely cause them to feel vindicated. 

You can follow this author on Twitter: @AndrewBroering

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