As a candidate, Trump promised that his judicial nominees would "all [be] picked by the Federalist Society." That pledge was unusual and undesirable, according to Christopher Kang, the principal White House adviser on judicial recruitment under President Obama.
"We certainly reached out to organizations" in looking for judicial candidates, Kang remarked at a Feb. 17 program sponsored by the liberal American Constitution Society (ACS). "But we never went to any organization and said we'll look only at your list."
"The very idea that [Trump] would outsource the process to two ideological groups," exclaimed Kang, now executive director of an Asian-American advocacy group. "He doesn't see anything wrong with that."
Gorsuch confirmed the Federalist Society's role in his Senate questionnaire by stating that his initial contact came from the society's longtime executive director, Leonard Leo. As elaborated in a long story by New York Times reporters Eric Lipton and Jeremy W. Peters [March 19], Leo has played a significant role in judicial nominations by Republican presidents in his nearly 30 years with the society.
Trump met with Leo shortly after the November election and over the next two months Gorsuch and two other Republican-appointed federal appeals court judges emerged as the leading candidates for the vacancy left by the death of the conservative lion Justice Antonin Scalia. Trump picked Gorsuch after interviewing all three and announced the selection in a prime-time televised ceremony with the 49-year-old Gorsuch and Gorsuch's wife on stage with him.
In accepting the nomination, Gorsuch stressed the need for courts "to apply, not alter," the laws as enacted by elected representatives. "A judge who likes every outcome he reaches is very likely a bad judge," Gorsuch said, as laughter rippled through the audience, "stretching for results he prefers rather than those the law demands."
Leo was quick out of the box the next morning to sing Gorsuch's praises on the MSNBC program Mornings With Joe. "What he is doing in many opinions is saying the best way to protect freedom and accountability is to look at the Constitution and to interpret the law as it's written and originally intended," Leo commented. Two days later, Heritage Foundation legal analysts Elizabeth Slattery and Tiffany Bates echoed Leo in a short essay praising Gorsuch for his "demonstrated fidelity to the Constitution."
In his questionnaire, Gorsuch noted his Federalist Society membership and frequent speeches to society chapters over the years. Gorsuch is still found on the Federalist Society web site as one of its "experts." Gorsuch listed no professional memberships or speaking appearances with liberal legal groups.
In the seven weeks since his selection, several liberal interest groups have produced reports strongly criticizing Gorsuch's record in his decade on the Tenth U.S. Circuit Court of Appeals and raising questions about his year-long stint in a ranking position at the Justice Department under President George W. Bush. The Heritage Foundation has sponsored two programs stacked with conservative legal experts; Leo has continued to speak out in favor of the nomination. No one from either organization has been heard to criticize any of Gorscuh's rulings.
To apply Gorsuch's test, his record could be read to indicate that he is "very likely a bad judge." His rulings or dissenting opinions tilt strongly in favor of outcomes agreeable to a judge who reached the bench after a career steeped in conservative politics and law. He started an alternative conservative student newspaper as an undergraduate at Columbia. He had a dual Supreme Court clerkship with two moderate justices, Byron White and Anthony Kennedy, but then moved on to a corporate law firm and the post at the Bush Justice Department.
The liberal groups ACS, the Alliance for Justice, and the NAACP Legal Defense Fund all generally view Gorsuch as favoring interests of business and employers over consumer and worker rights. In civil rights cases, "he's able to see the facts through the eyes of the employer but not through the eyes of the people who have been discriminated against," Sherilynn Ifill, the Legal Defense Fund's president and counsel-director, remarked on MSNBC on Sunday.
Appearing on the same program, moderated by MSNBC's chief legal correspondent Ari Melber, Cecile Richards, national president of Planned Parenthood, said Gorsuch has "a disturbing record on women's issues." Gorsuch has not ruled in a squarely joined abortion rights case, but the book-length dissertation that he wrote criticizing assisted suicide laws is viewed by abortion rights groups as a worrisome sign of pro-life views tilting toward a vote to overturn the landmark decision in Roe v. Wade. In the controversial Hobby Lobby case, he voted to allow religiously motivated employers to opt out of the Obamacare requirement to provide coverage for contraceptives in employee health plans.
In like vein, Gorsuch's call to reconsider the 30-year-old precedent that established so-called Chevron deference toward federal administrative agencies would be, in the present context, a boon to business and anti-regulatory conservatives. Gorscuh's mother, now known as Anne Gorsuch Burford after a remarriage, was strongly criticized for dismantling environmental regulations while head of the Environmental Protection Agency under President Ronald Reagan.
Despite the pronounced tilt in his opinions, Gorsuch is widely admired as a careful and cautious jurist. He is likely to be that much more cautious on the witness stand as outnumbered Senate Democrats seek to pin him down on major issues and highlight problematic opinions. But Senate Republicans who have voted in virtual lockstep for all of Trump's nominees so far seem unlikely to break ranks, making confirmation the most likely outcome after a contentious hearing and sharply debated votes in committee and on the Senate floor.