Trump’s nominee to the Supreme Court will be smeared. But those who know him know better.
Although there were notable exceptions, Donald Trump famously lost the conservative intelligentsia — and went on to do quite well electorally without us. But conservative scholars will, I predict, be virtually unanimous in their praise of the president’s choice of Judge Neil Gorsuch of the U.S. Court of Appeals for the 10th Circuit to succeed Antonin Scalia on the Supreme Court. I know firsthand why: Gorsuch’s combination of outstanding intellectual and personal qualities places him in the top rank of American jurists. If confirmed, as I expect him easily to be, he will certainly be a good justice and has the potential to be a great one.
Gorsuch and I have worked together on academic projects, most notably when I was the editor of the Princeton University Press book series for which he wrote “The Future of Assisted Suicide and Euthanasia” — an impressive, deeply scholarly book that was praised by bioethicists (including the liberal Daniel Callahan and the conservative John Keown) as well as academic lawyers — in 2006. The book critically engages the work of scholars (including myself) across a range of disciplines and representing a spectrum of viewpoints. Gorsuch went the extra mile in ensuring that his treatment of the work of other writers — especially those with whom he disagrees — was sympathetic and impeccably accurate. His sheer fair-mindedness was the thing I found most striking about working with him.
When it comes to fitness for judicial office, the first criterion usually considered is intellect and education, and here Gorsuch is off the charts. Even people who do not share his political outlook or judicial philosophy, but have read his judicial opinions, recognize him as an intellectual superstar. Anyone who has heard him speak, and especially anyone who has spoken with him, probably has had that impression strongly reinforced. His opinions are marked by analytical depth and precision and remarkably lucid writing.
In selecting Gorsuch, President Trump has without question fulfilled his pledge to appoint a justice in the mold of Antonin Scalia — a conservative intellectual leader. Even those of us who refused to get on the Trump train after his nomination have to acknowledge that. But one respect in which Gorsuch is unlike Scalia is that he is not fiery or pugnacious. Rather, his demeanor is scholarly — one might even say bookish. He is not a fierce debater. I recall being with him at an academic conference at which a graduate student contradicted and challenged a comment he had made. Far from bristling or even returning fire, he encouraged the student to develop her argument further, graciously acknowledging merit in the point she had made.
Likewise in the courtroom, he does not interrogate, much less intimidate, the lawyers who appear before him. It is truer to say that he engages them in conversations that enable him to explore the strengths and weaknesses of arguments advanced in their written briefs or address issues he thinks are important but that did not receive sufficient attention in those submissions.
Of course, most people are interested above all in how he is likely to vote on hot-button issues such as abortion, same-sex marriage, gun control, campaign finance reform and religious freedom. In the confirmation hearings, he will no doubt do what another friend of mine, Justice Elena Kagan, did and basically refuse to discuss these issues on the ground that they are likely to come before him. I expect what just about everyone else expects: Gorsuch, who greatly admired Scalia, thinks about the constitutional issues in these areas pretty much the same way Scalia did.
Orthodox conservatives believe that the Constitution should be interpreted in a way that is faithful to the text and guided, where the text is less than perfectly clear in its application to a question, by the original understanding of its framers and ratifiers. Gorsuch, like Scalia — and like every other judge who was on Trump’s list of 21 — is a textualist and an originalist. But he is not dogmatic, and his credentials help explain why.
After studying at Columbia University and Harvard Law School, Gorsuch earned a doctorate from Oxford University, where he was supervised by John Finnis, an internationally acclaimed philosopher of law and a theorist of natural law and natural rights. He won both a Truman Scholarship and a Marshall Scholarship, two of the most prestigious scholarships in American higher education. After completing his education, Gorsuch clerked for Appeals Court Judge David Sentelle, and then for Supreme Court Justices Byron White and Anthony M. Kennedy. He spent a year in the Justice Department and then a decade in the private practice of law with a distinguished firm. He has served on the 10th Circuit since 2006. His record bespeaks intellect and perseverance — although Gorsuch is, nonetheless, remarkably approachable.
If Democrats are looking for a point of vulnerability in either Gorsuch’s integrity or impartiality, they won’t find it. He is basically a Boy Scout. He’s a faithful husband, a good father, a caring neighbor, a generous friend, a man of probity who holds himself to the highest ethical standards. Oh, and he will bring religious diversity to a Court that is entirely Catholic and Jewish: He’s an Episcopalian.
Gorsuch will be a hard man to depict as a ferocious partisan or an ideological judge, which isn’t to say he won’t be described this way by ideologically partisan critics for whom the prospect of a conservative intellectual giant on the Supreme Court is anything but welcome. As Gorsuch himself has frequently observed, including in a widely noted tribute to Scalia, good judges sometimes have to vote or rule in ways they do not like — because that is what the law requires. Indeed, he noted, if a judge does not sometimes find himself voting or ruling against his own personal beliefs about politics or morality, as Scalia himself famously did in holding that the desecration of the American flag is political expression protected by the First Amendment, that is a sure sign that he is failing to do justice according to law. In a democracy, the law never lines up perfectly with anyone’s political and moral beliefs. And it is to the law that judges have sworn a sacred oath of fidelity.