Judge Neil M. Gorsuch, a
highly regarded conservative jurist best known for upholding religious
liberty rights in the legal battles over Obamacare, has emerged as a
leading contender for President Trump’s first Supreme Court nomination.
Gorsuch,
49, was among 21 potential high court candidates circulated by Trump’s team
during the campaign, but his stock has been rising lately as
several admirers and supporters have been named to positions in the Trump
administration.
He
currently serves on the U.S. 10th Circuit Court of Appeals in Denver.
A former clerk for Justice Byron White, also a Colorado
native, and Justice Anthony M. Kennedy, he served in the
George W. Bush administration’s Justice Department.
In Gorsuch, supporters see a jurist who has strong academic
credentials, a gift for
clear writing and a devotion to deciding cases based on the original meaning of
the Constitution and the text of statutes, as did the late Justice Antonin
Scalia.
Just as
importantly, Gorsuch is seen as someone who might be more easily confirmed in
the Senate. Unlike other appointees of
President George W. Bush, Gorsuch won an easy Senate confirmation on a
voice vote in 2006.
"He is very bright, well-respected and quite personable,"
said John Malcolm, a lawyer at the Heritage Foundation. "And there's no question he would not be as
contentious as some others."
Until recently, the two top contenders for the
first Supreme Court nomination by Trump were believed to be Judge William H. Pryor Jr.
of Alabama, who serves on the U.S. 11th Circuit Court in Atlanta, and
Judge Diane Sykes of Wisconsin, who serves on the U.S. 7th Circuit Court
in Chicago. Trump mentioned them in a Republican debate after Scalia
died.
Pryor appeared to have an edge because he is a
protege of Sen. Jeff Sessions, Trump’s choice for U.S. attorney general.
Pryor has been an outspoken critic of abortion rights and gay rights,
which won him admirers on the right, but also made him a target for liberals
and Democrats. He once described the Roe vs. Wade decision as “the worst
abomination in the history of constitutional law.”
While attacks from liberals would be expected,
Pryor has also drawn criticism from some activists on the right.
In 2011, he signed on to an 11th Circuit opinion by liberal Judge
Rosemary Barkett upholding a sex-discrimination complaint filed by a
transgender state employee in Georgia. The worker was hired as a man but
was fired after returning as a woman. In a 3-0 decision in Glenn vs. Brumby, the
11th Circuit concluded it is unconstitutional “sex-based discrimination” to
fire a state employee “because of his or her gender nonconformity.”
Leonard Leo, an executive vice president of
the Federalist Society and an advisor to the Trump team, said in a broadcast interview
that Pryor was following legal precedents. But the decision has been cited by
some on the right as grounds for opposing him.
Perhaps as a result, several other prominent
conservative judges like Gorsuch are getting more attention.
Senate Minority Leader Charles E. Schumer
(D-N.Y.) said Sunday that Democrats would fight hard to stop court
nominees who were not “bipartisan and mainstream.”
Pryor’s past comments on abortion and gay
rights would almost certainly fuel a confirmation fight. When President George
W. Bush nominated him to the 11th Circuit in 2003, Democrats used the
filibuster rule to block a vote. Bush then put him in the post temporarily
through a recess appointment. He finally won confirmation on a 53-45 vote
in 2005 as part of a bipartisan Senate deal led by the so-called Gang of 14.
By
contrast, Gorsuch does not have a record of strident comments that would
fuel a confirmation fight.
However, he knows firsthand the rough side of
political battles. His mother, Anne Gorsuch Burford, was a conservative
Colorado state legislator and a states’ rights advocate when President Reagan
chose her in 1981 to lead the Environmental Protection Agency. She was soon
caught up in battles with environmentalists and Democrats on Capitol Hill
for allegedly going soft on polluters. She was held in contempt of Congress in
1983 for refusing to turn over documents.
She said she had followed the legal advice of
the Justice Department. Nonetheless, she was forced to resign in 1983 because
the White House saw her as a political distraction. She returned to
Colorado and died in 2004.
Neil
Gorsuch was educated at a prep school in Maryland and has degrees from Columbia University,
Harvard Law School and Oxford University, where he earned a doctorate in legal
philosophy.
His best-known opinions grew out of the
dispute over the Obama administration’s regulation requiring employers to
provide female employees with the full range of contraceptives as part of
their health insurance.
Catholic groups like the Little Sisters of the
Poor and the evangelical Christian family who owned the Hobby Lobby craft
stores sued and sought a religious exemption from paying for contraceptives
that they said could “destroy a fertilized human egg.”
Both cases ended up in the 10th Circuit,
and Gorsuch voiced support for the religious claimants.
“All of us face the problem of complicity,” he
wrote in the Hobby Lobby case. And government should not force people with
“sincerely held religious beliefs” to be complicit in “conduct their religion
teaches them to be gravely wrong.” The Supreme Court reached the same
decision by a 5-4 vote in 2014.
Shortly before he became a judge, Gorsuch
wrote a book for Princeton University Press,
“The Future of Assisted Suicide and Euthanasia,” which reviewed the history and
the legal arguments for and against permitting people to have help in ending
their lives. He concluded arguing for “retaining the laws banning assisted
suicide and euthanasia … based on the idea that all human beings are
intrinsically valuable and the intentional taking of human life by private
persons is always wrong.”
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