Gorsuch After Scalia

The president’s introduction of Judge Neil Gorsuch to the nation as his nominee for the Supreme Court vacancy left by Justice Antonin Scalia’s death gave us a lift we sorely needed. Finally, something to be at peace about in our public life.

For this former law clerk of Scalia, who would like to see his legacy endure, it felt very good to listen to what Gorsuch had to say behind that White House podium. And for all Americans anxious about our ongoing experiment in self-government, the announcement offered a brief reprieve from our bitter politics of scowls, chaos, and mutual outrage.

This nomination is just one step in a process that will be various shades of ugly much of the time. But when Gorsuch is confirmed as our next Associate Justice of the Supreme Court of the United States, the spectacle will move on, and the Court will be strengthened by this new custodian to care for our Constitution and laws.

The confirmation process also holds the potential to be constructive. Opponents will try to pick Gorsuch apart. But he seems to be a man whose center holds. And isn’t it refreshing for us and for our children to see elevated into high public office someone described as “an affable, collegial, unpretentious man with a good sense of humor”?

In my (pre-election) Supreme Court round-up for this journal last year, “The Court After Scalia,” I suggested that “no new justices for a spell might be better than adding anyone who could make it through our rotten confirmation process.” I was wrong. Judge Gorsuch can and will make it through, and the Court will be better with him on it. The biggest reason why someone of his caliber and judicial character can get confirmed now, though, is that the balance of the Court will not be altered by his confirmation but simply reset to where it was before Justice Scalia’s death. If the next opening comes from a vacancy left by Anthony Kennedy, Stephen Breyer, or Ruth Bader Ginsburg, the wheels may yet come off the wagon.

The carefully choreographed roll-out of Judge Gorsuch means that many readers may already be familiar with his well-written, well-reasoned opinions on a range of federal law questions. These opinions reveal an appreciation for religious liberty protections, a skeptical stance toward administrative agencies, and a textual orientation in matters of constitutional and statutory interpretation.

Given the general soundness of Judge Gorsuch’s approaches to both written and unwritten law, attacks on his prior decisions are likely to focus more on the outcomes and parties than on his jurisprudential orientation. It would not be surprising, though, to see some mischaracterization of the classical natural law tradition by those seeking to make political hay of Judge Gorsuch’s graduate study under the supervision of John Finnis.

Other critics may take issue with Gorsuch’s book, The Future of Assisted Suicide and Euthanasia, published by Princeton University Press under the guidance of Robert P. George as series editor. Finnis and George are favorite targets of social and political liberals; a constitutional right to assisted suicide is a goal of those seeking to expand the doctrinal support for constitutional rights to abortion and same-sex marriage; and the intellectual underpinnings of classical natural law thinking are not well understood in our law schools and universities, much less in the broader culture. But this attack prospect, too, is more of an opportunity for championing good ideas than a cause for serious concern about confirmability.

Judge Gorsuch was out on the ski slopes when he learned of Justice Scalia’s death. Now he finds himself at the top of another mountain, with a challenging run ahead of him. As an outdoorsman, Gorsuch knows that the weather can change for the worse quickly. But for now the sun is out, and there is fresh powder to carve. Here’s to hoping he puts on a clinic that schools us all in constitutional form and judicial substance.

Kevin C. Walsh is professor of law at the University of Richmond School of Law.