President Trump’s first Supreme Court pick is exceeding expectations.
Neil Gorsuch is carving out a conservative legacy worthy of his predecessor, Antonin Scalia, according to legal experts. Conservatives who hoped for a “New Scalia” are pleased with Gorsuch’s work, according to a Washington Times report.
It’s welcome news for Trump, whose record on judicial nominees has won praise from Republicans who are no fan of his populist agenda.
Worthy successor to Scalia
Gorsuch was confirmed in a narrow vote in April of 2017, one year after Scalia’s death. His addition to the court fulfilled promises by president Trump to replace Scalia, known for his originalist approach to the Constitution, with a judge cut from the same cloth. Now two years on the bench, Gorsuch is proving himself worthy of the seat vacated by his widely cherished predecessor, some legal analysts say.
“Being a true originalist, he’s probably a little more Scalia than Scalia,” said Curt Levey, president of the Committee for Justice. “He’s more than lived up to Trump’s promise.”
Over the last two years, Gorsuch has cultivated a reputation for his lengthy, carefully considered opinions and Scalia-like independence. Like Scalia, Gorsuch’s approach is consciously originalist: stick to what the Constitution says, instead of adhering to partisan interests. That approach has occasionally led him to independently arrive at the same conclusion as the liberals on the bench. For example, in Sessions v. Dimaya last April, Gorsuch sided with the liberals in ruling that a law granting authority to deport illegal migrants who commit “crimes of violence” was too vague.
“He’s shown himself to be a very independent judge,” said David Feder, a former law clerk to Justice Gorsuch. “Very much in the mold of Justice Scalia as the president promise.”
“What we really want is not a conservative activist. We want someone who really believes what Gorsuch said at his hearing, which is the court should be strictly interpretative and defer to Congress,” Mr. Levey said.
Independent, but still conservative
Gorsuch’s friendship with liberal colleague Sonia Sotomayor also evokes Scalia’s amicable relationship with Ruth Bader Ginsburg. While some might see Gorsuch’s independent streak as out of step with what many conservatives hoped, and many liberals feared, would come of his nomination — a more conservative SCOTUS that is willing to swiftly deliver on long-sought agenda items — liberals aren’t feeling reassured.
Gorsuch came under fire from the left last week for his opinion in a 5-4 ruling by the court’s conservatives that the Constitution does not guarantee death row inmates a painless death under the “cruel and unusual punishment” clause of the Bill of Rights. Gorsuch wrote that a convicted rapist and murder who has a rare medical condition can be executed by lethal injection, prompting outrage on the left, with critics calling the decision “bloodthirsty.”
“The Eighth Amendment does not guarantee a prisoner a painless death — something that, of course, isn’t guaranteed to many people, including most victims of capital crimes,” Gorsuch wrote.
While he might not be a conservative activist, Gorsuch has proven to be a tie-breaker in favor of his fellow conservatives, Elliot Mincberg, a senior fellow at the progressive People for the American Way, told the Washington Times.
“Gorsuch himself provided the fifth vote to do significant damage such as upholding the Trump Muslim ban, approving Ohio’s purge of over a million voters and reversing a decades-old precedent that protected workers right to organize,” Mincberg said.
Anti-Kavanaugh?
Gorsuch’s relatively painless confirmation was followed by a bloody nomination fight over Trump’s second pick, Brett Kavanaugh. While Kavanaugh’s nomination evoked strong emotions on both sides, his confirmation to the court has not necessarily resulted in the conservative takeover that was widely anticipated.
Kavanaugh replaced Anthony Kennedy, making the center-right John Roberts the new fulcrum of the court. But Kavanaugh has sided with Roberts in nearly every opinion since October. Roberts, who is a more moderate conservative, has more often sided with the liberals.
Both Roberts and Kavanaugh have their reasons for wanting to avoid the perception of an activist court, as the left immediately introduced talking points upon Kavanaugh’s confirmation that the new conservative majority would compromise the court’s integrity — despite a long history of liberal judicial activism. Apparently sensitive to those complaints, and more than likely the public scandal the preceded his confirmation, Kavanaugh seems to be laying low.
In contrast to Gorsuch’s independent streak, Kavanaugh has sided with the majority in nearly every opinion, including a December decision declining to take up a Republican-led challenge to Planned Parenthood funding. Kavanaugh sided with the liberals; Gorsuch dissented.
If Kavanaugh is proving to be a squishier justice than some conservatives had hoped, Gorsuch is so far proving to be a worthy successor to Scalia and an asset to Trump’s agenda.
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