Gorsuch is good news for religious and social conservatives - and for those who value the separation of powers
Nothing helped Donald Trump win over reluctant religious and social conservatives more than his oft-repeated promise to replace the late Justice Antonin Scalia with someone cut from the same cloth. Yesterday, he made good on that pledge by nominating Neil Gorsuch to the Supreme Court.
Voters who held their noses and voted for Donald Trump in the hope that he would “save the Court” have reason to feel vindicated. At least for now.
In over a decade as a federal judge, Gorsuch has been a reliable defender of constitutional and statutory protections for religious freedom: notably, he stood against the Obama administration’s refusal to treat the Little Sisters of the Poor as a religious organisation. Gorsuch is author of a book arguing against euthanasia and physician-assisted suicide, in which he takes as a fundamental principle “the idea that all human beings are intrinsically valuable”.
Perhaps most importantly, and by all accounts, Gorsuch’s judicial philosophy tracks very closely with that of the man he would replace and for whom he has longstanding and evident regard, Justice Scalia. As a judge he has shown a deep commitment to the idea that judges ought to read the law to mean what its authors intended it to mean, as made evident by what the text actually says.
Judge Gorsuch has outstanding legal credentials, including degrees from Colombia, Harvard (where he was a classmate of Barack Obama) and Oxford. He’s also only 49 years old, which means a lifetime appointment could reshape the Court for decades. Abortion rights advocates like Planned Parenthood and NARAL are in full panic.
All of this bodes well. But the appointment of Gorsuch isn’t simply a victory for social and religious conservatives. A Supreme Court which takes the separation of powers as seriously as Gorsuch has, and which places priority on the meaning of legal texts rather than on generating politically desirable outcomes, as Gorsuch does, can be an important check on a reckless and overzealous federal executive. If the first two weeks of the Trump administration have demonstrated anything, it’s that such checks will be needed.
Politically, Trump’s selection of Gorsuch is something of a masterstroke. The pick encourages all the right allies and potential allies – those conservatives suspicious of Trump and reluctant to support him, most of all – and seems perfectly calibrated to undermine Democratic attempts at obstruction. Democratic opposition in the Senate is outnumbered and politically vulnerable; the nominee is eminently qualified. Already, enough Democratic senators have signalled that they won’t block the nomination that confirmation is all but guaranteed.
That said, even if Judge Gorsuch is confirmed and even if he turns out to be the second coming of Antonin Scalia, conservative hopes for remaking the Supreme Court will hardly be a done deal. Scalia 2.0 would simply return the balance of the Court to where it was two years ago when it invented a right to same-sex marriage. In other words, the best case scenario from a Gorsuch appointment is that things won’t be worse than they have been recently—which hasn’t been very good. And then there’s the question of the next vacancy.
No one really knows when the next vacancy will arise, but the ages of the sitting justices suggest it is likely to come when one of the Court’s liberal justices retires or dies. The political fight over that seat—a seat which could potentially give conservative justices a reliable 5-4 or 6-3 majority on the Court for a decade or more—that will be a truly high stakes political fight. Expect it to be ugly.
But for now, even Trump’s most reluctant conservative supporters are celebrating an outstanding nomination and a promise kept.