(Photo: Kevin Lamarque/Reuters)
After just over a year without a full bench, the Supreme Court may soon be restored to its full panel of nine justices. Earlier today, the Senate Judiciary Committee began confirmation hearings for Judge Neil Gorsuch of the Tenth Circuit Court of Appeals, who was nominated by President Trump in January to fill the seat of the late Justice Antonin Scalia.
Gorsuch, a conservative and Colorado native, has garnered frequent praise from legal experts on both sides for his impartiality and incisive commentary. He is also frequently hailed as one of the leading proponents of originalism, an approach to interpreting constitutional language that emphasizes the original meaning and intent behind a given legal provision. This was the preferred method of the Justice Scalia, who served as a mentor to Judge Gorsuch following his confirmation to the Tenth Circuit in 2006, and the two were of like mind on many judicial issues, especially on issues of gun control and freedom of religious expression.
Clearly, Judge Gorsuch would be a natural choice for any Republican president and an easy confirmation for a GOP-led Senate. However, the potential appointment is not without its controversies. Following the death of Justice Scalia last February, Senate Majority Leader Mitch McConnell (R-Ken.) announced that Senate Republicans would not even consider Judge Merrick Garland, then-President Obama’s pick for the job. The move drew harsh criticism from both liberals and moderates, who viewed it as a partisan power grab and dangerous affront to tradition.
Then there is the question of Gorsuch’s judicial record, which has many progressive Democrats worried. For instance, while the appellate jurist has not yet had a chance to rule on abortion rights, several activists have pointed to his book – “The Future of Assisted Suicide and Euthanasia,” in which he argues against the practice of assisted suicide on moral and legal grounds – as proof of strong pro-life convictions. Progressives and liberals may also find Gorsuch’s history on capital punishment troubling: according to a profile published on SCOTUSblog, he has rarely voted in favor of death row inmates seeking judicial relief.
However, some of this worry may be premature. Gorsuch’s originalist proclivities have led him to take positions which could prove amicable to liberal causes. When it comes to interpreting criminal statute, the potential justice seems to have adopted a similar approach to his late mentor, who frequently voted alongside his more liberal colleagues in favor of more constrained readings of criminal laws. Gorsuch has also been highly critical of laws restricting public religious expression and of executive overreach. Somewhat counter-intuitively, if he is confirmed, these principles may sometimes put Gorsuch at odds with President Trump’s harsh stances on crime and Islam.
In the end, however, Judge Gorsuch’s confirmation would do little to shift the balance of the court from where it was a year ago. Due to its exceptionally balanced composition of four liberals, four conservatives, and one centrist, the Roberts Court has been decidedly measured in its rulings, having both expanded civil rights for minorities and putting checks on legislative and executive overreach. Replacing Justice Scalia with another conservative originalist will, for the most part, keep things as they are. But, Justices Ginsburg, Breyer, and Kennedy are all approaching the age where retirement or deaths are increasingly probable. If one of them vacates their seat while the GOP retains control of the Senate and White House, the healthy balance of the Roberts Court could be in jeopardy.
Ford Mulligan Staff Reporter