Neil Gorsuch is likely to win confirmation as the nation's 113th Supreme Court justice, possibly even quickly enough to join the court before the end of the current term as successor to the late Justice Antonin Scalia. But confirmation will come only after a bitter fight waged by Senate Democrats and liberal advocacy groups opposed to his judicial record and still indignant at the Republican-controlled Senate's role in stealing the seat that they believe rightfully belongs to President Obama's nominee, Merrick Garland.
President Trump has boxed his opponents in, however, by choosing a nominee of unassailable professional credentials and legal views that fall within what legal conservatives have now defined as mainstream. Democrats will try to use the confirmation hearings to paint Gorsuch as outside the mainstream, just as they did 30 years ago in defeating President Reagan's nomination of Robert Bork. From all that appears, however, Gorsuch is no Bork. He he has neither the beard nor the doctrinaire zeal that led Bork to question the constitutional basis for the right to privacy or to injudiciously describe a seat on the Supreme Court as "an intellectual feast."
Gorsuch came off instead in his five minutes of prime-time on Tuesday night as a judge's judge: modest in speech and demeanor and committed to following the law without respect to personal beliefs. A judge who rules only in favor of policies he favors, Gorsuch said, would be "a bad judge."
Trump began introducing Gorsuch by listing his academic credentials: Columbia, Harvard Law, and Oxford: "as good as I have ever seen," he said. Perhaps, but Garland in fact had a stronger resume: summa cum laude graduation from Harvard College and magna cum laude graduation from the law school after serving as managing editor of the Harvard Law Review.
Based on his judicial record, Garland also had a stronger claim on the seat than Gorsuch can claim: 19 years' experience on the federal appeals court for the District of Columbia Circuit, with a record as a judicial moderate and vocal praise from senators from both parties. Trump depicted Gorsuch as a bipartisan choice based on his voice vote Senate confirmation for the Tenth Circuit back in 2006. In truth, however, Gorsuch was approved for the lifetime seat with little close attention from senators or the general public; and, despite his protestations Tuesday night, Gorsuch's rulings over a decade on the bench seem to reflect strongly conservative views of law and policy.
Democrats and liberal groups began trying to paint that picture of Gorsuch's record even with the prime-time announcement not yet over. "A disastrous decision," proclaimed Nan Aron, executive director of the liberal Alliance for Justice. She elaborated later by saying that Gorsuch would not offer "an independent check on the dangerous impulses of this administration" and would favor "powerful special interests" over "the rights of everyday people."
The Center for American Progress (CAP) similarly depicted Gorsuch as pro-business by referencing his view, as urged by business groups, for cutting back a 30-year-old precedent that legal experts know as Chevron deference limiting courts' power to overturn administrative agency regulations. The group also noted, without specifics, that Gorsuch has ruled against workers claiming job discrimination.
Both CAP and the abortion rights group NARAL pointed unfavorably to Gorsuch's dissenting opinion at the Tenth Circuit in the so-called Hobby Lobby case in favor of allowing religiously motivated private employers an exemption from the contraception coverage mandate adopted as part of Obamacare. At the Supreme Court, however, a 5-4 majority in 2014 adopted the position that Gorsuch had taken in dissent.
If confirmed, Gorsuch would fit comfortably with the court's conservative bloc and return the court to the 4-1-4 alignment that prevailed before Scalia's death. He would come to the court as the first ex-law clerk to have served not one but two justices. A fourth-generation Coloradan, Gorsuch was selected as a Supreme Court law clerk by fellow Coloradan Byron R. White as White was about to retire. He served in the retired justice's chambers, but in line with common practice White lent him to an active justice, Anthony M. Kennedy. Legal conservatives now hope that Gorsuch's connection can help pull Kennedy back toward the right.
As an ex-law clerk, Gorsuch could hit the ground running if confirmed. He is described as an active questioner from the bench and thus seems likely to join the other recently named justices Alito, Sotomayor, and Kagan in making his presence felt during oral arguments even as a junior justice. Gorsuch is also praised for opinion-writing with an eye to accessibility and readability, making him a potential rival of Roberts and Kagan for the title of best writer on the court.
Outnumbered 52-48, Democrats have their work cut out for them in trying to block the nomination. Based on confirmation fights for Trump nominees so far, Republicans seem quite likely to stick together and they would need to peel off only eight Democrats to get the 60 votes needed to overcome a Democratic filibuster. And Democrats perhaps should worry about the risks of getting what they ask for. After Bork's defeat, Reagan eventually turned to the more moderate Kennedy. If Gorsuch were to be blocked, Trump seems quite unlikely to move toward the center but likely instead to to double down with an equally or even more conservative choice.