Nelson A. Pryor: Guest Columnist
Judge Neil Gorsuch, President Donald Trump’s nominee to succeed Justice Antonin Scalia, is a native Coloradan and avid outdoorsman. He clerked for a federal appellate judge and two Supreme Court justices and spent a decade practicing law before his appointment in 2006, at age 39, to the 10th U.S. Circuit Court of Appeals.
Is this the type of person one would want to be on the U.S. Supreme Court? Once nominated by the President, the nominee looks to the U.S. Senate, for confirmation, as is, a vote, to advise and consent.
A Textualist
Judge Gorsuch is among the judiciary’s most consistent and adept practitioners of constitutional textualism, the approach Scalia championed. In a memorial lecture last year, Judge Gorsuch said that “an assiduous focus on text, structure, and history is essential to the proper exercise of the judicial function.” Textualism, he added, serves to “confine the range of possible outcomes and provide a remarkably stable and predictable set of rules.”
Judge Gorsuch’s textualism extends to the Constitution, quite emphatically: “That document,” he wrote, “isn’t some inkblot on which litigants may project their hopes and dreams for a new and perfected tort law, but a carefully drafted text judges are charged with applying according to its original public meaning.”
Looking to the “original public meaning” of the Fourth Amendment, for example, Judge Gorsuch has rejected the government’s view that a search warrant could be applied across jurisdictional lines. He also disputed its claim that police officers may ignore “No Trespassing” signs to invade a homeowner’s property without a warrant.
What about the Constitution’s separation of powers, intended to safeguard liberty? Judge Gorsuch has been at the vanguard of applying originalism to the questions raised by today’s Leviathan state, which is increasingly controlled by unaccountable executive agencies. These questions loom large after the rash of executive actions by President Obama, and now the whiplash reversals by the Trump administration.
Assumption of power
He has vigorously enforced rights of religious exercise under statutes like the Religious Freedom Restoration Act, deferring to Congress’s decision to vindicate, as he put it, “this nation’s long-held aspiration to serve as a refuge of religious tolerance.”
The deference that judges now must give to agencies’ interpretations of the law; he wrote in an opinion last year, permit’s the executive “to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”
Judge Gorsuch added: “Maybe the time has come to face the behemoth.” His addition to the Supreme Court would give the justices a better chance than ever to do precisely that.
This article is based on the report: “What kind of a Judge Is Neil Gorsuch?” in the February 2, 2017 Wall Street Journal, p. 17a.