Earlier this week, President Trump nominated Neil Gorsuch, a judge currently sitting on the Tenth Circuit Court of Appeals, to the Supreme Court. Like any federal judge, Gorsuch must be approved by the Senate before he can be appointed and take his seat on the nation’s highest court. Who is Judge Gorsuch, and what can the country expect from his nomination and possible tenure on the Court?
Early Life and Career
Gorsuch was raised in Colorado, but moved to Washington as a teenager following his mother’s appointment as the first woman to head the EPA. He attended one of the most selective preparatory schools in the country, and received degrees from Columbia University and Harvard Law School. He distinguished himself after law school by clerking for a judge on the D.C. Circuit Court of Appeals, then at the Supreme Court for Justices Byron White and Anthony Kennedy. Judge Gorsuch already has experience, then, interpreting constitutional law from the nation’s highest court from his time as a clerk.
Gorsuch went on to private practice, where he graduated from an associate to a partner in just three years. After a short stint in a senior position at the Department of Justice, Gorsuch was nominated by George W. Bush to the D.C. Circuit, where he has presided since.
Issues
Most judges keep their ideas mostly contained in their judicial opinions, but Gorsuch has written a book denouncing euthanasia, stating that “intentional taking of human life . . . is always wrong.” Trump stated he was looking for pro-life judges, and his pick squares with an originalist whose approach to the law is hard to reconcile with Roe v. Wade, where the Court found a right to abortion in the Constitution. Yet, Gorsuch has also stated respect for stare decisis, the legal concept of adherence to established precedence for the sake of continuity.
Judge Gorsuch has shown reason in his approach to criminal law and civil rights litigation, finding ways to keep government overreach in check. In a case that reached the Tenth Circuit just last year, Gorsuch dissented from the majority opinion when he wrote that a school and police officer should not be entitled to qualified immunity following the arrest of a 13 year old boy for burping and laughing in a school gym class. A New Mexico state court had long before alerted law enforcement that the misdemeanor statute in question did not apply to instances like the one at issue there.
Approach to the Law: Originalism
How should the Constitution be interpreted? Justices disagree, and not just for political reasons. Some find that judges should simply interpret the plain text in the context in which it was written. Others hold that the Constitution is a “living document,” which breathes new life in changing circumstances to suit the spirit of the times. Originalists don’t support the contortions necessary to find Constitutional rights in cases like abortion (Roe, 1973; Casey, 1992) or gay marriage (Obergefell, 2015), about which the text is silent. Progressives counter that these landmark cases have been victories established by the judicial branch, when Congress did not have the courage to finish the course.
Gorsuch sits squarely in the conservative originalist camp, interpreting the text strictly and rejecting the role of judges as activists. In his view, judges should find what the law is, not what it should be—that role is left to the legislature, the people’s direct representatives. Gorsuch has shown a bent towards favoritism of state power over federal power, and has stated explicitly that judges must “apply the law as it is . . . looking to text, structure, and history to decide . . . not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.”
What to Expect:
The long year of eight Justices sitting on the nation’s highest Court may soon come to an end with Judge Gorsuch’s nomination. With Republicans firmly in control of the Senate, only a few Democrats need vote for Trump’s pick to avoid a filibuster. Gorsuch’s track record has shown a strong conservative streak, but Supreme Court Justices can surprise, as the country learned when Chief Justice John Roberts upheld Obamacare on a tax theory. Only time will tell how things will develop.
If you are facing serious criminal charges, partner with an attorney who understands the complicated legal system and has practiced at the highest level. After graduating from the best institutions in the country, Walker Fults was selected to clerk for the United States District Court, where he helped decide cases from inside the chambers of federal court. Call the Law Office of Walker Fults today at (214) 838-0557 to find out how our legal team can go to work for you.
