Is Neil Gorsuch, Donald Trump's pick for the US Supreme Court's approach to law apt for 2017?

Donald Trump has picked Neil Gorsuch, a young conservative, as the next justice to fill the vacant seat in the eight-judge bench in the US Supreme Court. Trump's next battle, however, will be to confirm Gorsuch whose legacy will likely outlive the presidency.

The elegant, silver-haired 49-year-old is Donald Trump's pick to serve on the Supreme Court. The youngest nominee in a generation, Gorsuch, however, differs from his prospective colleagues in a specific respect. On a court with five Catholics and three Jews, he would be the lone Episcopalian. He would replace former justice Antonin Scalia who died in February 2016.

Largely unknown until just a few days ago, the Colorado native with an Ivy League education — who has served on the federal Court of Appeals for the 10th Circuit in Denver since 2006 — now must win Senate confirmation. He earned an undergraduate degree from Columbia University in New York and a law degree from Harvard — shortly after Barack Obama got his. He then headed across the Atlantic to study at Oxford — which perhaps explains his penchant for quoting Winston Churchill.

If confirmed by the Senate to the Supreme Court, Gorsuch would fill the seat of the man he seeks to emulate as a judge. He would be the first justice to serve alongside a colleague for whom he worked. Gorsuch described his former boss, Justice Anthony Kennedy,  as one of the judges who brought him up in the law on Tuesday.

File image of Neil Gorsuch. AP

File image of Neil Gorsuch. AP

Ever confident, Trump said he expected Gorsuch to be donning his robes "very quickly", but the Democrats will perhaps put up more of a fight this time. Some Democratic lawmakers, still miffed that the ninth seat on the court sat empty for a year as Barack Obama's nominee could not even win a hearing from the Republican-controlled chamber, have pledged to make things difficult.

The court currently has before it a case about the rights of transgender students, though the case could end up being returned to a lower court without a full hearing in the high court. Next term's big issue could be whether some partisan redistricting violates the Constitution. Critics of labour unions are also 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.

If he is confirmed, Gorsuch would join:

Elena Kagan (56) and Sonia Sotomayor (62), appointed by Barack Obama

Chief Justice John Roberts (62) and Samuel Alito (66), appointed by George W Bush

Stephen Breyer (78) and Ruth Bader Ginsburg (83), appointed by Bill Clinton

Clarence Thomas (68), appointed by George HW Bush

Anthony Kennedy (80), appointed by Ronald Reagan

Gorsuch: A conservative like Scalia 

Trump is thus mulling the "nuclear option" — getting Senate Leader Mitch McConnell to change the rules to allow 52 Republican senators to give him a simple majority.

A brilliant conservative judge with a prestigious resume, Gorsuch is a proponent of traditional so-called family values, a strict reading of the Constitution and the need to protect the role of religion in American society. Gorsuch has a pedigree that will reassure Trump supporters, especially given the comparisons many make between him and Scalia. Supporters say he could also win over those Republicans who have been less than enthusiastic about the billionaire property mogul-turned-president. Gorsuch, known for being extremely polite is also seen as having diplomatic skills and a certain intellectual rigour.

His ability to write incisive rulings and his traditionalist views have fueled the comparisons with Scalia. The Columbia and Harvard graduate says he is flattered by such comparisons, and does not hide his admiration for Scalia, who died at age 79.

Like Scalia, Gorsuch favours what is known as originalism — the idea that judges should interpret the US Constitution by reverting to how it was understood at the time it was written, with no modern filters.

Gorsuch believes in sanctity of life, religion and is against abortion

Gorsuch's opinions are largely known through his writings. He authored a book on the moral and legal arguments against euthanasia and assisted suicide, and backed companies who refused to provide contraception to their employees, as was called for under Obama's health care reform.

The law requires companies to support payments for "drugs or devices that can have the effect of destroying a fertilised human egg", Gorsuch wrote. They believe that "violates their faith, representing a degree of complicity their religion disallows". He also rejects the notion that the courts should revert to federal agencies when a legal point needs to be interpreted — a stance backed by conservatives. Gorsuch's trump card, as it were, is that he's never offered a seriously controversial viewpoint, especially on abortion, that could jam up his confirmation.

Abortion rights groups immediately criticised the nomination, saying Gorsuch represents a threat to women's reproductive rights and to the landmark Roe vs Wade Supreme Court decision legalising abortion nationwide in 1973.

On the campaign trail, Trump promised to appoint a crusading anti-abortion Supreme Court justice who'd work to overturn the Roe vs Wade opinion that legalised it. An Associated Press review of decisions and writings by Gorsuch during a decade as a federal appeals court judge in Denver turns up no guarantees on how he might rule on that hot-button issue.

"With a clear track record of supporting an agenda that undermines abortion access and endangers women, there is no doubt that Gorsuch is a direct threat to Roe Wade and the promise it holds for women's equality," Naral Pro-Choice America President Ilyse Hogue said in a statement. The president of the Family Research Council, which backed Trump, heralded the president's nomination of Gorsuch as a win for abortion opponents in a TV appearance Tuesday.

"He said he was going to pick pro-life judges that were strict constructionists, and that's what we appear to have in Judge Gorsuch," Tony Perkins said in an interview on Fox News Channel. "So, I think evangelicals are going to be very pleased."

As a Vox report explains, Gorsuch thinks that "human life is fundamentally and inherently valuable, and that the intentional taking of human life by private persons is always wrong," — essentially, he pins it on secular principles instead of religion. However, this line of thought doesn't align with his views on the death penalty, Gorsuch's predecessor Scalia didn't entertain death row appeals very often, it is likely that Gorsuch will not either. In a 2006 book titled The Future of Assisted Suicide and Euthanasia, he characterised assisted suicide as "essentially a right to consensual homicide." He also has joined decisions upholding death sentences. According to Charlotte Observer, Gorsuch, in the past upheld death sentences through a textual interpretation of law.

From his time on the appeals court, Gorsuch's notable opinions include defence of religious freedom. In two cases that involved the contraception mandate under the Obama health care law, Gorsuch sided with businesses and non-profit groups that voiced religious objections to the requirement that they provide cost-free contraception to women covered under their health plans.

Here are summaries of some of his notable opinions:

On contraception | Hobby Lobby Stores vs Sebelius

Gorsuch voted with a majority of the 10th Circuit in favour of privately held for-profit secular corporations, and individuals who owned or controlled them, who raised religious objections to paying for contraception for women covered under their health plans.

Gorsuch wrote a separate opinion in which he explained the moral dilemma facing the family that owns Hobby Lobby. "As they understand it, ordering their companies to provide insurance coverage for drugs or devices whose use is inconsistent with their faith itself violates their faith, representing a degree of complicity their religion disallows... No doubt, the Greens' religious convictions are contestable. Some may even find the Greens' beliefs offensive. But no one disputes that they are sincerely held religious beliefs," he wrote.

Giving power to federal agencies | Gutierrez-Brizuela vs Lunch

In this 2016 case, Gorsuch wrote for a panel of judges who sided with a Mexican citizen who was seeking permission to live in the US. The case gave Gorsuch an opportunity to raise an issue he has championed in his time as a judge: whether courts should so readily defer to federal agencies in determining what laws and regulations mean.

Referring to high-court cases that Gorsuch believes cede too much power to agencies, he wrote: "There's an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron and Brand X 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. Maybe the time has come to face the behemoth."

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.

With inputs from agencies


Published Date: Feb 02, 2017 01:55 pm | Updated Date: Feb 02, 2017 01:55 pm


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