Tonight, President Trump fulfilled his promise to nominate a very qualified and intelligent conservative judge. Neil Gorsuch is likely a very good pick.
However, given the past history, the enormous post-constitutional pressure even in some circles of the conservative legal movement, and so much terrible court precedent, it is yet to be determined if Gorsuch has the resolve to not get sucked into the swamp.
This point was best encapsulated in a statement from Rep. Ron DeSantis, R-Fla. (B, 87%), himself a conservative constitutionalist lawyer. After praising Gorsuch’s background, he noted that there is still more to see:
Perhaps the most important quality for a constitutionalist Supreme Court justice is something that Scalia demonstrated in spades: backbone. There will be times when the proper reading of the Constitution will diverge sharply from the conventional wisdom of D.C. elites, the legacy press and the legal intelligentsia. Scalia never wilted in the face of intense criticism; indeed, he reveled in it, as it was a sign that he was properly discharging his constitutional duty.
I can’t tell you whether Gorsuch possesses a Scalia-esque spine. Time will tell. If he does, he has a chance to be a great justice and fitting heir to the Scalia legacy.”
Here are seven takeaways from President Trump’s nomination of Judge Gorsuch:
1. Highly regarded:
Neil Gorsuch seems highly regarded by the conservative legal establishment, and has a strong record as a textualist. All evidence suggests he is strongly pro-life, at least as a matter of personal politics, and has a demonstrable record of championing religious liberty. He is passionate about the unconstitutional nature of the administrative state, and seems to be willing to overturn the Chevron deference on a lot of regulatory issues.
2. Still a lot unknown on issues that will determine fate of our republic:
There is more to life than the Chevron deference. There is still a lot we don’t know about Gorsuch on many of the key cultural and political issues that will really determine the future of our civilization. There are numerous questions about immigration, election law, disparate impact, the 14th Amendment, overturning Obergefell, etc. that conservatives need assurances on, along with Gorsuch’s willingness to overturn other unconstitutional decisions of the past and terrible lower court opinions even when there is no circuit split. [I’ll be producing a list this week of very specific questions that cuts through the boilerplate about being an originalist]. To be fair, most candidates don’t have enough of a paper trail on these issues because we have been inclined to pick young nominees (for longevity purposes). There is no doubt we know more about some other circuit judges, such as, Priscilla Owen, Edith Jones, and Janice Rogers Brown and where they stand on some of these key issues, but they are much older and were never in the running.
3. Signs don’t point to a full blown Clarence Thomas:
With Gorsuch, like with most lower court judges, there is nothing clearly indicating he would have the boldness of a Clarence Thomas to wipe away bad precedent across the board. As a result, Gorsuch probably won’t inspire as much confidence as some of the more outspoken conservative circuit judges would have. Then again, there are very few Clarence Thomases. Gorsuch could very well be an Alito, which is solid enough. But if conservatives have just one opportunity at this, it would be worthwhile to first vet him before we go nuclear and fight Democrats.
Remember, Gorsuch was confirmed to the Tenth Circuit by a unanimous voice vote during an era when Democrats were vociferously fighting the nominations of Brown, Owen, Estrada and many others. That in itself should not be held against him, and Democrats will definitely besmirch him as a SCOTUS nominee (as they would any nominee at this point)/ They usually, however don’t allow Clarence Thomas types to sail through to appeals courts seats either. I hope I’m wrong, but given the one-directional inertia of the elite legal field, it is very rare for someone to turn out as a Clarence Thomas if you don’t see it coming ahead of time.
4. Left still has at least 5-4 majority on most cases:
Let’s keep in mind that even if Gorsuch is every bit as good as Scalia, best case scenario we are back to the Obergefell/Obamacare/Hellerstedt/disparate impact/affirmative action court of Anthony Kennedy. After expending all the political capital to get Gorsuch nominated, which will likely include abolishing the filibuster, we will immediately face a slew of losses at the court. Moreover, as part of my series “12 reasons the federal judiciary is irremediably broken,” we demonstrated that the lower courts are completely off the rails. It will take months for Trump to even begin filling those vacancies and it still won’t fundamentally shift the balance of most circuits for many years. In the meantime, we are only playing defense at the courts with the Left racking up growing momentum for creating a permanent Democrat majority through election law cases, the destruction of our society with transgender case law, and the endangerment of our sovereignty with bad immigration decisions. Chief Justice John Roberts has shown a reluctance to aggressively swat down these cases (although that could change with a full court), and Kennedy is still on the wrong side of many of them. It will take another SCOTUS vacancy to really move the needle.
5. Gorsuch should be bold at confirmation hearings:
Obviously it’s never smart to tell Democrats exactly where you stand at the confirmation hearings, but Gorsuch — if he really is one of us — should not shy away from speaking about the true role of the courts, how Roe, Obergefell, and much of the 14th Amendment and civil rights jurisprudence has no basis in the Constitution and statute. He should proudly proclaim that stare decisis of unconstitutional precedent violates the oath of office — the very foundation for Marbury and judicial review itself. It’s time to publicly expose the Left. If we can’t proudly stand for our Constitution when Republicans have the power to confirm him, then how will we have the confidence Gorsuch is a true originalist? This election was largely won on this issue of the court and the public expects us to be bold about originalism. Trump said unambiguously he wants the Constitution interpreted just as it was originally drafted, and Gorsuch has an opportunity to make that case on a national platform.
6. Trump must move swiftly on lower court confirmations:
There are 17 pending vacancies on the appeals court level. Trump should not wait the traditional six months or to get started. He must begin taking back the lower courts, which decide 99 percent of the cases and often hold up legitimate state laws for years until they reach SCOTUS — if ever. However, we can already see how hard it is to find one unvarnished originalist with a paper trail even for Supreme Court. Imagine how hard it is for us to confidently find 17 circuit court picks with even smaller paper trails? Moreover, there are some serious limitations because of the tradition of granting home state senators veto power and the practice of dividing up appeals court slots by each state within the circuit. Some of that will have to change if we want to make a dent in the lower courts.
7. The need for wholesale judicial reform:
Consequently, given all the existing problems with the courts and the limitations to finding enough full originalists quick enough, we will never solve the problem simply by appointing better judges, although we must fight to get them on the bench. As I’ve noted many times before, we should use this time to not only confirm Gorsuch but to raise public awareness of why the courts are already broken and why the balance of power must be restored through Art. III Sec. 2 and a Convention of the States.
Finally, let us remember the admonishment of Larry D. Kramer, former Dean of Stanford Law School, in his 2004 book on judicial supremacy, so that one day we can strive for a time when judicial supremacy is systemically reversed:
Neither the Founding generation nor their children nor their children’s children, right on down to our grandparents’ generation, were so passive about their role as republican citizens. They would not have accepted-did not accept-being told that a lawyerly elite had charge of the Constitution, and they would have been incredulous if told (as we are often told today) that the main reason to worry about who becomes president is that the winner will control judicial appointments. Something would have gone terribly wrong, they believed, if an unelected judiciary were being given that kind of importance and deference. Perhaps such a country could still be called democratic, but it would no longer be the kind of democracy Americans had fought and died and struggled to create.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.