Gorsuch and the Washington Script

A familiar Washington script exists for Republican Supreme Court nominations. Once the president announces his choice, Democrats and advocacy groups on the left start issuing dire warnings about the threat the nominee poses to the Constitution, the law, and the American way of life. The words are always the same: The nominee is “extreme,” “outside the mainstream,” “radical,” and “far-right wing.” (“Weirdo” is what they really mean, though typically they leave that to implication.) Whether these charges have any connection to reality is unimportant. I remember protestors in Washington in the summer of 1990 carrying signs that read, “Stop Souter Now or Women Will Die!” The goal is primarily to block, or at least bloody, the nominee, and secondarily to rally the base by venting frustration at the possibility the Court might move in a more conservative direction.

Given the current fever pitch of opposition to the Trump administration, Democrats and advocacy groups will no doubt follow this script when considering the nomination of Judge Neil Gorsuch. This will be a mistake. An attempt to block Judge Gorsuch will almost certainly fail. Senate Democrats don’t have the votes, and attempting to filibuster a man so obviously qualified, in terms of intelligence, skill, and temperament, may only injure red-state Democrats up for reelection in 2018.

Besides, the charges won’t fly. Judge Gorsuch appears to be an orthodox judicial conservative, of the sort any Republican president in the last generation could have nominated. He has impeccable establishment credentials, including clerkships for two Supreme Court justices, Byron White and Anthony Kennedy, both of them centrists, and the respect of lawyers across the spectrum. He is a “feeder judge,” whose law clerks go on to work for both liberal and conservative justices at the Court—which shows the high regard his future colleagues have for him, across the jurisprudential divide. To the extent it matters, he apparently is active in a very liberal church—which, for a conservative, suggests good humor, if nothing else.

So attempts to portray him as an extremist are bound to fail. If anything, his background suggests that liberals will find him more congenial than other nominees they could have faced. On the issues that matter to readers of First Things, he seems very sound. He holds to originalism in constitutional interpretation and textualism in statutory interpretation—two positions that have been the foundation for judicial conservatism since the 1980s. His record in religion cases is reassuring. On the free exercise side, he has shown sensitivity to the right of believers to claim exemptions from laws that substantially burden their religious exercise. And he has done so not only in the famous Hobby Lobby case, in which the claimants were conservative Christians, but in a case involving a Native American prisoner. In fact, his opinion in the latter case, Youngbear v. Lambert, is a sophisticated, engaging essay on the law of religious exemptions generally. Gorsuch is a clear and accessible writer—something one cannot say for many judges.

His opinions on the Establishment Clause side, less well known, are also encouraging. Judge Gorsuch has signaled his opposition to the thirty-year-old “endorsement test,” which forbids state-sponsored displays that a reasonable observer would understand as an endorsement of religion. The test is famously malleable, and Judge Gorsuch has criticized the way his own circuit, in particular, has misinterpreted it to forbid some traditional public displays—including, notably, a Ten Commandments monument. His apparent dissatisfaction with the endorsement test bodes well for restoring a more sane Establishment Clause jurisprudence that honors American traditions.

In truth, no one knows exactly how a prospective justice will rule over time, including the justice himself. It is impossible to foresee all the issues he will have to face and what the exigencies of particular cases will be. Some justices surprise more than others. But on the basis of what we know, Judge Gorsuch seems a solid choice. He likely will make conservatives, including religious conservatives, proud.

Mark L. Movsesian co-directs the Tradition Project at the St. John’s Center for Law and Religion.