Judge Neil Gorsuch is a walking, talking Hollywood writer's pitch: “I've got it! Antonin Scalia meets Jimmy Stewart!” Gorsuch, who famously resembles Stewart, complete with lanky charm, also has the intelligence, skills, and pen of a worthy successor to Scalia. His opinions are clear, amusing, pointed, and legally acute. Scalia could reach greater heights of prose style, sometimes with an acid brilliance that Gorsuch is perhaps too courtly to employ. On the other hand, lower-court judging is a cramped stage, and a Justice Gorsuch would have more scope to unfurl his indisputable talents. On the merits of legal issues, there is every indication that Gorsuch is sincerely committed to “originalist” principles (interpret the Constitution according to its original public meaning), and that he sees originalism as inconsistent with the libertine constitutional adventurism of the Warren and Burger courts. He is also a robust defender of religious freedom. Although Gorsuch is an Episcopalian by heritage and attends an Episcopal church, he himself is by all accounts influenced by orthodox natural-law theory on issues of euthanasia and abortion.
Many have suggested that Gorsuch, if confirmed, will simply replace Scalia and thereby restore the status quo ante Scalia's passing. On that view, the really serious confirmation battle will come if and when either Ruth Bader Ginsburg or Anthony Kennedy steps down. Those who think the present confirmation is actually consequential tend to see Gorsuch as a “Kennedy whisperer,” capable of swaying Justice Anthony Kennedy, his old boss and a notorious weathervane, to the conservative side in crucial cases. Both views, however, seriously understate Gorsuch's charm and gift for maintaining relationships across partisan divides, and thus underestimate the threat he poses to the liberal bloc, which achieves its successes by relentlessly voting in lockstep while the conservatives are sometimes fractured. It is hardly out of the question that Gorsuch might occasionally bring one or both of the more conservative Democratic appointees, Justices Breyer and Kagan, into coalition with the conservatives.
From a broader standpoint, however, what is interesting about Gorsuch is what his selection says about the Trump administration. Gorsuch is an insider's insider: child of the Beltway, Columbia undergraduate, Harvard Law, Oxford jurisprudence degree under John Finnis, and two Supreme Court clerkships for Justices White and Kennedy. (The SCOTUS nerds obsess over the details, but the key point is that Gorsuch spent plenty of time at the Court and knows exactly how it works.) The Trump team, that is, chose a consummately elite transatlantic jurist. Flight 216 is the British Airways overnighter between Washington and London; if November was the “Flight 93 election,” Gorsuch is the Flight 216 selection.
Given the administration's overall strategic situation, a Flight 216 selection makes perfect sense. So far as legal issues go, and more broadly as well, one of the administration's main problems is to bring establishment Republicans home to Trump. The administration, still grievously understaffed and facing a rebellion of the bureaucracy, needs GOP establishment support for appointments and confirmations, needs establishment conservative lawyers and policy wonks to serve in government, and needs to strengthen the coalition between populists and conservatives more generally. The selection of Gorsuch signals to elite Republicans, especially lawyers, that their views and legal commitments are welcome in the Trump administration. The day after the Gorsuch nomination, Ross Douthat's column in the New York Times suggested, with reference to the recent immigration fiasco, that populists fail when and because they are incapable of tapping genuine elite expertise, even when doing so would help them promote their ends. The nomination of Gorsuch, the very model of an intelligent, intellectual, expert, principled but conservative jurist, suggests that the administration has begun to learn that lesson.
Adrian Vermeule is Ralph S. Tyler Professor of Constitutional Law at Harvard Law School and author of Law’s Abnegation: From Law’s Empire to the Administrative State.
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