Judge Neil Gorsuch, Short-List SCOTUS Nominee Favorite


United States Supreme Court Building

Judge Neil Gorsuch, federal judge on the U.S. Court of Appeals, 10th Circuit is currently considered the favorite(i) candidate of President Trump’s short list for Supreme Court Justice.

Personal Background

Neil McGill Gorsuch was born August 29, 1967 in Denver, Colorado. In 1988, he earned a B.A. from Columbia University, where he co-founded the alternative newspaper The Fed. A 1991 Harvard Law School graduate, he went on to become a Marshall Scholar(ii) and earn a Doctorate of Legal Philosophy from Oxford University in 2004(iii).

Professional and Political Background

In 1991-1992, Hon. Gorsuch clerked for Judge David B. Sentelle at the U.S. District Court for the D.C. Circuit. From 1993-1994, he clerked for Supreme Court Justices Byron White and Anthony Kennedy. Hon. Gorsuch was in private practice at the Washington D.C. firm of Kellogg, Huber, Hansen, Todd, Evans & Figel from 1995-2005. In 2005, he became a Deputy Attorney General at the U.S. Department of Justice, where he served until 2006(iv).

Hon. Gorsuch is also a published author of two legal books. He is considered one of the best writers on the federal bench and is often referred to as a judge in the mold of the late Justice Antonin Scalia(v).

In May 2006, President George W. Bush nominated Sykes to the Tenth Circuit. Two months later, Hon. Gorsuch was confirmed by voice vote in the U.S. Senate.

Legal Opinions of Note

Hon. Gorsuch has participated in several cases of note, including two of the most recent, and infamous freedom of religion cases involving forced provision of contraceptives as a result of the Affordable Care Act.

1st Amendment

  • Hobby Lobby Stores v. Sebilius(vi) (2013, 10th Cir.) Judge Gorsuch wrote, in concurrence, in support of the plaintiffs, emphasizing the need to accept the parties’ requirements of their faith. NOTE: Supported Freedom of Religion
  • Little Sisters of the Poor Home for the Aged v. Burwell(vii) (2015, 10th Cir.) Judge Gorsuch again wrote in support of the plaintiffs, this time in dissent, indicating the 10th Circuit had not shown appropriate deference to the plaintiffs’ statement of the tenets of their faith. NOTE: Supported Freedom of Religion
  • American Atheists Inc. v. Davenport(viii) (2010, 10th Cir.)Judge Gorsuch penned a dissenting opinion regarding the “reasonable observer test” as individuals are too likely to find impermissible endorsement of religion where none was intended, which prevents religious individuals from reasonable participation in public life. NOTE: Supported Freedom of Religion
  • Green v. Haskell County Board of Commissioners(ix) (2009, 10th Cir.)Similar dissent opinion as penned in American Atheists, Inc. v. Davenport. NOTE: Supported Freedom of Religion
  • Summum v. Pleasant Grove City(x) (2007, 10th Cir.) Judge Gorsuch dissented from the ruling which limited the ability of a government entity to display a donated monument of the Ten Commandments. The Supreme Court subsequently reversed the 10th Court ruling, adopting the dissent’s reasoning. NOTE: Supported Freedom of Religion

2nd Amendment

  • United States v.Games-Perez (2012, 10th Cir.) While this case is not specifically tied to gun ownership, but rather how to correctly interpret criminal laws to prevent criminalizing potentially innocent conduct, it is related to laws regarding gun ownership. Judge Gorsuch’s focus on ensuring the laws protect citizens mirrors that of Justice Scalia.

SCOTUSBlog.com also reviewed Judge Gorsuch’s rulings in terms of criminal law, the death penalty, the “Dormant Commerce Clause,” and Administrative Law. In all areas except Administrative Law, SCOTUSBlog indicated that Gorsuch is much in the mold of Justice Scalia. In Administrative Law, Judge Gorsuch is considered even more conservative than even Justice Scalia, with a stance that grants the administrative state less power, supporting the small government principle of federalism,. They explain:

Gorsuch’s opinion — in which he stakes out ground that few have sought to defend — is a very compelling read, and it is unfair to try to summarize it in a few sentences. But it seems quite clear that:
(1) Gorsuch’s views on administrative law are meaningfully different from Scalia’s in a way that could be described as even more conservative; and yet
(2) the difference is not as profound as one might think. Unlike Scalia, Gorsuch really does want to apply the basic Gorsuch/Scalia take on ordinary statutes to administrative statutes as well. He believes even these broadly worded enforcement statutes have objective meanings that can be understood from their texts; that it is the job of the courts to say what those laws mean and to tell agencies when they do not have the best reading; and that if the agency disagrees, the only proper recourse is for Congress to change the law or the Supreme Court to correct the error.(xi) ”

The liberal Alliance for Justice published a review of SCOTUS nominees called “The Trump List(xii)” in November 2016. In it, they rejected the candidates on a variety of progressive stances. In this list, they complained that Hon. Gorsuch was overly critical of liberals “addiction to constitutional litigation” and of plaintiffs’ lawyers who use “frivolous claims” for “free ride[s] to fast riches.(xiii)” This author sees no problem with these comments from Judge Gorsuch, as both are accurate on prima facie evidence.

Judge Neil McGill Gorsuch is an exemplary SCOTUS nominee. This author could find no cases that contradict the principles of federalism, and all references to Hon. Gorsuch referred to him as an obvious successor to Justice Scalia. Indeed, in some areas, he is even more conservative.

 

i: “New Front-Runner Emerges in SCOTUS Contest.” Kevin Daley. January 22, 2017. The Daily Caller News Foundation. Retrieved from the Web January 23, 2017. http://dailycaller.com/2017/01/22/new-front-runner-emerges-in-the-scotus-contest/. AND “The Supreme Court Short List is Shorter.” Erick Erickson. January 23, 2017. Retrieved from the Web January 23, 2017. http://theresurgent.com/the-supreme-court-short-list-is-shorter/.
ii: Marshall Scholarship. Wikipedia. Retrieved from the Web January 23, 2017. https://en.wikipedia.org/wiki/Marshall_Scholarship.
iii: Biographical Directory of Federal Judges. Retrieved from the Web January 23, 2017. http://www.fjc.gov/servlet/nGetInfo?jid=3125&cid=999&ctype=na&instate=na
iv: IBID.
v: “Potential Nominee Profile: Neil Gorsuch.” Eric Citron. January 13, 2017. Retrieved from the Web January 23, 2017. http://www.scotusblog.com/2017/01/potential-nominee-profile-neil-gorsuch/
vi: Hobby Lobby Stores. V. Sebelius (2013, 10th Cir.) https://www.ca10.uscourts.gov/opinions/12/12-6294.pdf
vii: Little Sisters of the Poor Home for the Aged v. Burwell. http://www.scotusblog.com/wp-content/uploads/2015/08/15-105-op-below.pdf
viii: American Atheists, Inc. v. Davenport. https://www.ca10.uscourts.gov/opinions/08/08-4061.pdf
ix: Green v. Haskel County Board of Commissioners. https://www.ca10.uscourts.gov/opinions/06/06-7098.pdf
x: Summum v. Pleasant Grove City, 499 F.3d 1170 (10th Cir. 2007). https://www.courtlistener.com/opinion/1363085/summum-v-pleasant-grove-city/
xi: “Potential Nominee Profile: Neil Gorsuch.” Eric Citron. January 13, 2017. Retrieved from the Web January 23, 2017. http://www.scotusblog.com/2017/01/potential-nominee-profile-neil-gorsuch/
xii: “The Trump List.” Alliance for Justice. November 15, 2016. Retrieved from the Web January 23, 2017. http://afjactioncampaign.org/wp-content/uploads/2016/09/AFJAC-September-23-Trump-judge-report.pdf
xiii: IBID, p. 3.

3 Responses so far.

  1. Gwen E. says:

    Thanks, great article!

  2. EStewart says:

    Really enjoy this article!! It concisely lays out the case for Gorsuch as the front-runner (now official nominee) for SCOTUS. I think that President Trump hit a homerun with this appointment. Looking forward to seeing him on the bench soon!

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