On Tuesday night, President Trump is expected to announce that Neil Gorsuch, a Denver-based judge on the 10th Circuit Court of Appeals, to be his nominee for the Supreme Court. Gorsuch is a friend to religious interests and a stalwart conservative. He exists very much in the judicial mold of the man he’ll be replacing: Justice Antonin Scalia.
The apparent similarities are in keeping with promises Trump made during his campaign. He said he planned to “appoint judges very much in the mold of Justice [Antonin] Scalia.” Judging by that qualification alone, he could scarcely have found a better candidate.
Eric Citron of SCOTUSblog even writes that Gorsuch, who was appointed to the 10th Circuit by George W. Bush in 2006, is “the most natural successor to Justice Antonin Scalia on the Trump shortlist, both in terms of his judicial style and his substantive approach.” He’s right. When you get down to it, the similarities between the two judges are striking.
Justice Scalia was perhaps most well-known for his acute legal mind and for the fiery, inventive language that often appeared in his judicial opinions. Phrases like “pure applesauce,” “jiggery-pokery,” and “the first child is like a pancake” instilled Scalia’s opinions with undeniable personality, regardless of your political leanings. Gorsuch, too, is noted for his vibrant language and entertaining opinions. Citron writes that Gorsuch possesses a “flair that matches — or at least evokes — that of” Justice Scalia.
The greatest similarity to Scalia, however, comes not in Gorsuch’s writing but in his legal disposition. A self-styled disciple of Scalia’s judicial philosophy, Gorsuch considers himself a Constitutional Originalist. Simply put, he subscribes to the idea that the Constitution must be read as the framers intended, and that — as Scalia once put it — the Constitution is not a living document. It is in fact “Dead, dead, dead” and not open for interpretation.
Gorsuch also offered direct praise for Scalia in a speech at Case Western Reserve University School of Law in Cleveland, saying, “The great project of Justice Scalia’s career was to remind us of the differences between judges and legislators.” That view of his is also in keeping with his claim that liberals are overly litigious.
On the issues, as well, Gorsuch’s closeness to Scalia is on display. He usually rules in favor of religious interests — he and Scalia were on the same side regarding the Hobby Lobby case — and, also “like Scalia, has not been a friendly vote for death penalty petitioners pursuing relief from their sentences through federal habeas.”
Citron does, however, note one area over divergence between the two men. It’s one that’s often mired in a web of legalese: administrative law and regulatory interpretation. Gorsuch actually leans farther to the right here than Scalia, in that he is not as much in favor of allowing the various regulators and agencies much room to interpret the laws they’re meant to enforce. He applies his textualism to this issue as well and has no problem leaving regulators hamstrung as a result. “In short,” Citron writes, “Gorsuch definitely has a different take from Scalia on the administrative state — one that grants it less power, and so accords even more closely with the conservative conception of small government.”