Trump picks a scholarly originalist to replace Scalia on the Supreme Court

Trump picks a strict constructionist for Supreme Court vacancy
Trump picks a strict constructionist (originalist) for Supreme Court vacancy

There were three main candidates: Pryor had the most conservative record and a few red flags, Hardiman was the “stealth” candidate, and Gorsuch was the scholarly originalist.

Tump picked the scholarly originalist.

The Federalist explains:

Tonight, President Trump rewarded social conservatives and delivered on his campaign promise by nominating Neil Gorsuch, a Circuit Judge of the United States Court of Appeals for the 10th Circuit, to the United States Supreme Court.

[…]Gorsuch, 49, was appointed to the 10th Circuit in 2006 by George W. Bush. His nomination generated little controversy, and he was confirmed with a voice vote by the U.S. Senate. A graduate of Columbia, Harvard Law, and Oxford, he is praised for his eloquent legal prose, intellectual gifts, and is heralded by conservatives for his textualist and orginalist interpretations of the Constitution. It is no surprise that his appointment fills the vacuum left by Justice Antonin Scalia’s death.

Gorsuch has garnered significant praise from Robert P. George, the McCormick Professor of Jurisprudence at Princeton University and arguably the nation’s most influential social conservative intellectual. On Facebook, George issued the following praise for Gorsuch: “He would be a superb Supreme Court justice. He is intellectually extremely gifted and is deeply committed to the (actual) Constitution and the rule of law. He will not manufacture ‘rights’ or read things into the Constitution that aren’t there or read things out of the Constitution that are.” In social conservative circles, a Robert George endorsement is sufficient alone to merit support for Gorsuch.

This I really like – he’s a Protestant like me:

A member of the Anglican communion (who would become the only Protestant on the Supreme Court), Gorsuch studied under eminent legal philosopher, natural lawyer, and ethicist John Finnis at Oxford. Anyone familiar with Finnis’ work will understand the resounding alignment his work has with social conservative pillars, particularly around issues of human dignity and sexual ethics.

The only Protestant on the bench, in a majority Protestant country. It’s about time!

I’m not sure how to align SCOTUSBlog, but I think of them as center-left. Here’s what they think of the nominee:

With perhaps one notable area of disagreement, Judge Gorsuch’s prominent decisions bear the comparison out. For one thing, the great compliment that Gorsuch’s legal writing is in a class with Scalia’s is deserved: Gorsuch’s opinions are exceptionally clear and routinely entertaining; he is an unusual pleasure to read, and it is always plain exactly what he thinks and why. Like Scalia, Gorsuch also seems to have a set of judicial/ideological commitments apart from his personal policy preferences that drive his decision-making. He is an ardent textualist (like Scalia); he believes criminal laws should be clear and interpreted in favor of defendants even if that hurts government prosecutions (like Scalia); he is skeptical of efforts to purge religious expression from public spaces (like Scalia); he is highly dubious of legislative history (like Scalia); and he is less than enamored of the dormant commerce clause (like Scalia).

He’s like Scalia, and that’s what we want, (although Clarence Thomas is my favorite Supreme Court Justice).

Here’s Gorsuch’s view of legislating from the bench, in an article he wrote for National Review in 2005:

This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary. In the legislative arena, especially when the country is closely divided, compromises tend to be the rule the day. But when judges rule this or that policy unconstitutional, there’s little room for compromise: One side must win, the other must lose. In constitutional litigation, too, experiments and pilot programs–real-world laboratories in which ideas can be assessed on the results they produce–are not possible. Ideas are tested only in the abstract world of legal briefs and lawyers arguments. As a society, we lose the benefit of the give-and-take of the political process and the flexibility of social experimentation that only the elected branches can provide.

He doesn’t like judicial activism, he wants legislators to legislate. It’s about time we got a judge who believes in interpreting the Constitution instead of legislating from the bench. All we had for the last eight years was affirmative action picks who legislated from the bench, instead abiding by the plain meaning of the laws.

National Review also reports that religious liberty is an area of strength for him:

In two high-profile religious-liberty cases, Gorsuch voted to hold that the Obama administration had violated the Religious Freedom Restoration Act by refusing to exempt religious employers from a requirement to cover contraceptives in their insurance plans. In neither case, though, will it be easy for opponents to portray his decisions as evidence of social-conservative zealotry.

He concurred in a decision freeing the Hobby Lobby chain from the contraceptive mandate. Its evangelical owners considered some of the contraceptives they were forced to cover to be abortifacients, and objected to them for that reason. A narrow 5-4 majority of the Supreme Court affirmed that decision. Gorsuch joined a dissent arguing that the Little Sisters of the Poor, a group of Catholic nuns, had shown that the Obama administration’s fines for noncompliance with the mandate amounted to a substantial burden on the exercise of their faith — one of the preconditions for getting protection under the Religious Freedom Restoration Act. The Supreme Court unanimously vacated the decision from which Gorsuch had dissented.

Gorsuch’s solicitude for religious liberty has not been confined to cases involving abortion, contraception, or conservative Christians. In the less well-known Yellowbear v. Lampert, Gorsuch ruled that the Religious Land Use and Institutionalized Persons Act meant that a Native American prisoner had to have access to his prison’s sweat lodge.

Religious liberty is my core value – the thing I care the most about. It’s important to me that the nominee have a record on the issue I care about the most.

I think that next time we get a SCOTUS nominee, if we get 60 or more Republican senators in the Senate after the 2018 mid-terms, we’ll get the very conservative Pryor. Which would basically make Trump’s presidency great for conservatives. It’s very important to get these picks right. This was the right pick for 52 Republican senators in the Senate, and Pryor is the right pick when we have 60 Republican senators in the Senate. So get ready for 2018.

UPDATE: Ben Shapiro says that Pryor has some red flags, and that Gorsuch was the best pick. He calls it a home run, and even wore the red MAGA hat on his podcast, for being wrong. So Trump chose the best person.

6 thoughts on “Trump picks a scholarly originalist to replace Scalia on the Supreme Court”

  1. Judicial activism is very dangerous, as it means that the judiciary is not independent of the executive. The judiciary becomes an extension of the executive branch who enacts social policy of the executive and not the letter of the law. A great judge has many opinions he/she does not like for personal reasons, but must issue for legal reasons.

  2. 60 senators in 2018? We can wish but you’re a pragmatist like me and even with a favorable senate map in 2018, there is no way we’ll get a super majority in the senenare.

    My concern is Trump’s approval rating, if come fall of 2018 Tump’s rating is the in the teens, then kiss our majority good bye, let alone a super majority. And if his rating is in the 50’s-60’s range that still won’t flip 8 blues to red.

    We can’t strategize our conservative agenda on expecting a 2018 supermajority in the senate. That isn’t going to happen, unfortunately. Can’t get enough nearly enough votes that just aren’t there in 2 years. Requires a full generational shift.

    1. Yes, for this nomination, this was Great Trump. I know Never Trump people who ONLY wanted the good SCOTUS pick and the Obamacare repeal (two things) in order to switch out of Never Trump during the primary.

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