Trump picks Colo. appeals court judge Neil Gorsuch for Supreme Court
By Robert Barnes
January 31 at 10:12 PM - The Washington Post
President Trump nominated Colorado federal appeals court judge Neil Gorsuch
for the Supreme Court on Tuesday, opting in the most important decision of his
young presidency for a highly credentialed favorite of the conservative legal
establishment to fill the opening created last year by the death of Justice
Gorsuch, 49, prevailed over the other finalist, Thomas Hardiman of
Pennsylvania, also a federal appeals court judge, and Trump announced the
nomination at a televised prime-time event at the White House.
The bonhomie of the ceremony was in stark contrast to the reaction of
Democrats, who are ready for a pitched battle over the future of the Supreme
Court. Senate Minority Leader Charles E. Schumer (D-N.Y.) said Gorsuch will have
to win over some Democratic senators to get the 60 votes needed to clear
Trump broke tradition by entering the White House ceremony by himself, rather
than alongside his nominee. He declared that after gwhat may be the most
transparent judicial selection process in history,h he had delivered on a
campaign promise to gfind the very best judge in Americah for the court.
Gorsuch took a humbler approach, and showed the flair for language that has
won him praise as a legal writer.
gStanding here in a house of history, and acutely aware of my own
imperfections, I pledge that if I am confirmed I will do all my powers permit to
be a faithful servant of the Constitution and laws of this great country,h said
Gorsuch, with his wife Louise at his side.
Gorsuch pledged to be impartial and independent, and respectful of his place
gIt is the role of judges to apply, not alter, the work of the peoplefs
representatives,h he said. gA judge who likes every outcome he reaches is very
likely a bad judge.h
Gorsuchfs pick won extravagant praise from Republicans and conservatives,
something that has been rare in the Trump administrationfs combustible start.
The president noted that Gorsuch had been confirmed to the U.S. Court of Appeals
for the 10th Circuit 10 years ago without objection.
gI can only hope that both Democrats and Republicans can come together for
once for the good of the country,h Trump said.
That is unlikely. Democrats and liberals are still furious that the
Republican Senate did not allow a vote on former President Barack Obamafs choice
for the Scalia seat, Judge Merrick Garland, and vowed to contest Gorsuch.
An early sign of discontent: Trump invited senior Democratic senators to the
White House for a reception to meet his Supreme Court pick, but they declined,
according to senior aides.
A group of legal and civil rights groups blasted the nomination, saying
Gorsuch was a tool of conservative activists who would gut protections for
consumers, workers, clean air and water, safe food and medicine and roll back
the rights of women and LGBT people.
Gorsuch and Hardiman, 51, emerged from a list of 21 as Trumpfs most likely
choices. A third person on the shortlist — U.S. Appeals Court Judge William H.
Pryor Jr. of Alabama — saw his chances diminish as some Senate Republican
leaders have said his confirmation would be difficult.
Trump considered six and met with four, including a federal district judge
from Kentucky, Amul R. Thapar.
Gorsuch got the word Monday, and the couple went to a neighborfs house in
Boulder, where they were met by a team from the White House Counselfs Office.
They were ferried along a country road to the airport, where they boarded a
military jet to Washington.
Gorsuch is seen as a less bombastic version of Scalia and would seem destined
to be a solidly conservative vote on the ideologically split court. But friends
and supporters describe Gorsuch as being more interested in persuasion than
Scalia, who was just as likely to go it alone as to compromise.
Gorsuch would be the youngest Supreme Court justice since Clarence Thomas
was confirmed in 1991. But Gorsuch has been on the bench for a decade, and at
his 2006 investiture ceremony, friends joked that his prematurely gray hair was
gWhen Neil came to our firm in 1995 he had gray hair,h said one of his law
partners, Mark C. Hansen. gIn fact, he was born with silver hair, as well
as an inexhaustible store of Winston Churchill quotes.h
Indeed, Gorsuch came equipped for the ultimate judicial elevation.
There is a family connection to Republican establishment politics, and
service in the administration of George W. Bush. There is a glittery Ivy League
résumé — Columbia undergrad, Harvard Law — along with a Marshall scholarship to
Oxford. There is a partnership at one of Washingtonfs top litigation law firms
and a string of successful cases.
There is a Supreme Court clerkship; Gorsuch was hired by Justice Byron White,
a fellow Colorado native, who shared him with Justice Anthony M. Kennedy.
Kennedy stood by that day in Denver to administer the judicial oath, and if
Gorsuch is confirmed, Kennedy would become the first justice to sit with a
former clerk on the Supreme Courtfs mahogany bench.
But those who know Gorsuch and have studied his decade of solidly
conservative opinions on the Court of Appeals say he more resembles the man he
would replace — the late Justice Scalia — than the more moderate Kennedy.
Like Scalia, Gorsuch is a proponent of originalism — meaning that judges
should attempt to interpret the words of the Constitution as they were
understood at the time they were written — and a textualist who considers only
the words of the law being reviewed, not legislatorsf intent or the consequences
of the decision.
Critics say that those neutral considerations inevitably lead Gorsuch to
conservative outcomes, a criticism that was also leveled at Scalia.
Gorsuch would like to curb the deference that courts give to federal agencies
and is most noted for a strong defense of religious liberty in cases brought by
private companies and religious nonprofit groups objecting to the contraceptive
mandate in the Affordable Care Act.
Gorsuch said in a speech last spring that as a judge he had tried to follow
gThe great project of Justice Scaliafs career was to remind us of the
differences between judges and legislators,h Gorsuch told an audience at Case
Western Reserve University School of Law in Cleveland.
Legislators gmay appeal to their own moral convictions and to claims about
social utility to reshape the law as they think it should be in the future,h
Gorsuch said. But gjudges should do none of these things in a democratic
society.h Instead, they should use gtext, structure and historyh to understand
what the law is, gnot to decide cases based on their own moral convictions or
the policy consequences they believe might serve society best.h
But those who know him say he lacks Scaliafs combustible, combative
gHe has very strong opinions, but he just treats people well in every
context,h said Melissa Hart, a University of Colorado law professor. She is a
Democrat who clerked for former Justice John Paul Stevens and knows Gorsuch
because he has taught judicial ethics, legal writing and antitrust law at the
Gorsuch was born in Colorado and lives outside of Boulder with his wife,
Louise, whom he met while at Oxford, and two daughters. The nominee is an
Episcopalian, and would be the courtfs only Protestant. There are five Catholic
and three Jewish members.
But he spent formative years in Washington and graduated from Georgetown
Prep. He witnessed firsthand how difficult Washington politics can be. His
mother was Anne Gorsuch Burford, a lawyer and conservative Colorado legislator
who was picked by President Ronald Reagan as the first woman to head the
Environmental Protection Agency. Her tenure was short and rocky: She clashed
with environmentalists and was cited for contempt of Congress in 1982 for
refusing to turn over subpoenaed agency documents relating to hazardous waste
sites. Although she was following the legal advice of the Justice Department,
Burford was forced to resign when the administration gave up the fight. She died in 2004.
After his Supreme Court clerkship, Gorsuch joined the D.C. law firm of
Kellogg Huber Hansen Todd Evans & Figel, where he developed a taste for
litigation and eventually became a partner. He helped secure what his former
partner Hansen said was the largest antitrust award in history and won praise
for his courtroom style.
Gorsuch did a short stint as a high-ranking official in the Justice
Department and then was nominated to the appeals court by Bush. He sailed
through on a voice vote in the full Senate and took his seat on the Denver-based
court in August 2006.
Gorsuch is popular with current Supreme Court justices, and his clerks
regularly are hired for a term on the high court, not just by conservatives but
also by liberals such as Kagan and Justice Sonia Sotomayor.
On the appeals court, Gorsuch has not been called upon to consider two
hot-button social issues that may come before the Supreme Court: same-sex
marriage and abortion.
After a federal judge in Utah struck down that statefs prohibition on
same-sex marriage, Gorsuch was not a member of the 10th Circuit that upheld the
decision. It was one of the cases that eventually led to the Supreme Court
deciding marriage was a fundamental right that could not be denied gay
Likewise, Gorsuch has not ruled on abortion. But activists on both sides of
the issue believe they know where he stands. They point to language in his book
gThe Future of Assisted Suicide and Euthanasia,h in which he
opines that gall human beings are intrinsically valuable and the intentional
taking of human life by private persons is always wrong.h
Additionally, his rulings on behalf of those who challenged the Obamacare
mandate that employee insurance coverage provide all approved contraceptives
seemed instructive. He noted the provision would require the objecting
businesses to gunderwrite payments for drugs or devices that can have the effect
of destroying a fertilized human egg.h
Gorsuchfs opinions favoring the owners of the Hobby Lobby craft stores and a
nonprofit religious group called Little Sisters of the Poor took the same sort
of broad reading of the Religious Freedom Restoration Act as the Supreme Courtfs
In Gorsuchfs words, the law gdoesnft just apply to protect popular religious
beliefs: it does perhaps its most important work in protecting unpopular
religious beliefs, vindicating this nationfs long-held aspiration to serve as a
refuge of religious tolerance.h
Hart, the Democratic law professor, said she resents what Republicans did on
the Garland nomination but does not believe there is a gprincipled reason to
gHe will have a strong influence on the court because hefs a very persuasive
writer,h she said. gThatfs a little scary, but itfs not disqualifying.h
Philip Rucker and Katie Zezima contributed.